Eufaula National Bank v. Passmore, 102 Ala. 370

102 Ala. 370 | Ala. | 1893

STONE, C. J.

Ordinarily the burden of proving payment is on the party pleading it. But when a receipt in writing is given by the creditor, fairly importing that it is in full satisfaction, it becomes prima facie evidence, at least, against him, and though open to explanation or contradiction, the onus of proof rests on him. The receipt given by the appellant expresses that the sum received was the “amount of claim of Eufaula National Bank in matter of suit v. Brooks Bros.” and certain costs the appellant had advanced.

The contention now is, that Brooks Bros, were, by a stipulation in the notes constituting the claim, bound to pay the attorney's fees for collection, and that the sum paid did not embrace these fees. If the notes contained such stipulation, and the bank was entitled to demand payment of the fees, the facts were of necessity as well known to the bank, when it accepted payment of a sum not including them, and gave the receipt for the amount of its claim, as when it subsequently demanded payment of them. It was a rule of the common law, that an express promise of a creditor, if a release was not given, or the evidence of the debt was not surrendered, to acT •cept in payment a less sum than was really owing him, would not operate as a payment, or as an accord and satisfaction. But the Code declares that “all receipts', releases and discharges in writing, whether of a debt of record, or a contract under seal, or otherwise, must have effect according to the intention of the parties thereto.” Code, § 2774. The uniform construction of this statute has been, that though the sum paid may be much less than the debt really due, if a receipt in writing is given intended as a full discharge of the debt, in the absence of evidence of a mistake of material facts, or of concealment of sucli facts, or of misrepresentation, the receipt must have operation according to the intention of the parties. — Carroll v. Corbitt, 57 Ala. 579; Smith v. Gayle, 58 Ala. 600; Cowan v. Sapp, 74 Ala. 44. In McArthur v. Dane, 61 Ala. 542, referring to the statute, the court said : “We concur in opinion with the circuit judge that when this receipt was given, McArthur did not know, and was not informed by any one, that he was entitled to five per cent a month on the amount of money held by Dane, the sheriff. If he had been so informed, and had then received a' less sum in full payment of the amount due, such a receipt and discharge would under our statute have operated a full payment and acquittance of the judgment.” The bank had full knowledge of all the facts; all that can be said is that it was unmindful, or indifferent as to the fact, that it was entitled to claim payment of the attorney’s fees, a fact which was unknown to the receiver by whom the payment was made. That the receipt was intended as a full discharge of the claim of the bank, was so intended by the bank, and so accepted by the receiver, is a fact which is undisputed, and it “must have effect according to the intention of the parties.”

This conclusion renders it unnecessary to consider other questions which have been raised in argument. The decree of the chancellor is affirmed.