117 Ky. 915 | Ky. Ct. App. | 1904
Opinion of the court by
Affirming.
Beginning about 1886, and down to 1892, appellant became’ indebted to appellee in numerous! transactions, all represented by tho former’s promissory notes, in the aim of approximately $5,000. Three of the transactions were the purchase of real estate; another, tihe purchase of .a half interest in a drugstore owned by the parties as copartners; others, rent of ho'use. In the purchase of the interest in the store, appellant admitted, by writing then signed, that the notes and accounts owing the firm, amounting to the sum of $885, belonged to appellee, but that appellant was' to collect them in. the firm’s name, and pay over to appellee the sums collected. Numerous payments were made at irregular intervals, upon this gross indebtedness. All of the notes! were surrendered by appellee as having been paid, except one of $100, subject to certain endorsed credits, which was retained by appellee, and to collect which, and enforce the lilen reserved upon a lot, this suit was brought. Appellant defended, pleading payment, and, in addition, seeking by counterclaim to’ recover of appellee $169.60, with interest, which he alleged he had overpaid. Although the various transactions had no connection one with another, it was asserted that payments.
Able counsel have each presented theories of probability that are not without plausibility. Y'et in accepting either we would be forced to resort solely to conjecture — conjecture, it is true, that seems more or less probable. This state leads to a 'closer analysis of ithe rules of evidence upon which the respective theories must in part rest* The burden of proof upon the whole case was upon appellant. Had he testified clearly of his own knowledge as to the facts upon which his ■counsel rely, his case might have been made out. So with appellee. But the payments referred to were mostly made 10 or 12 years before the parties came to testify. Their recollectionsas to those transactions are shown to have been very misty, and far from satisfactory. They werei merchants living in different communities. Nearly all ¡the payments were by bank checks. That is, appellant had drawn certain checks on his banker in favor of appellee, but not stating in them the consideration. Some few payments are claimed to have been made in money. Appellant contends .that as he has shown an aggregate of payments of money (by checks and otherwise) to appellee, within the period since the debts were
“Payment” is a term of art, as used fin law. It involves more than the'passing of money, or itsl accepted equivalent, from one to another. The acceptance of money or other thing of value in satisfaction of a debt, or in exchange fop labor, goods, or other commodity, will be a payment, where it was so intended by the payor. ■ Generally there must be something shown in addition to the mere passing of money from one to the other. True, that fact may be a strong circumstance in determining -whether it was intended and accepted as a payment on a debt. And other slight circumstances might- satisfy the judicial inquiry as to the intent and purpose of such transaction. But it is not unusual for persons indebted to have other transactions with their creditors, .and to pay money for something else than upon the preexisting debt. Whether there was, -or not, a payment made upon a particular debt, may frequently be of vast importance to the parties, as affecting other rightisi, as well as the rights of others. So that the intent of the parties; becomes a material element in determining whether a transaction is a payment. The one who asserts that it is must prove it. There is no reason for a rule that would change the law of evidence where a payee of money happens to be a creditor of the payor, so as to impose upon the former a burden, and relieve the latter of it, contrary to the general rule in all other cases.
But going further in this case, it was shown, as has been indicated, that appellant. undertook in 1888 to collect some $885 in notes and accounts for appellee, and to transmit .him the money so collected. Appellee says appellant did col
Though appellant testified that he had paid the whole of his indebtedness, aind stated that he so testified after having refreshed his recollection by an inspection of his books, we are satisfied that his statements are more in the nature of deductions drawn after examining his books, than a refreshed recollection of the original events. This is made apparent to us by the manner of testifying, and many statements of the witness. This brings us to consider tbe value of certain book entries proved' in the record, and seemingly relied on as substantive evidence to sustain appellant’s plea. Though it is not made perfectly clear, we gather that appellant had-entered upon a ledger book an account showing certain payments made upon the various debts of which the note sued on is one. The account, as transcribed, is by no means complete .as an account. It does not purport to he .anything more than chronological entries of various payments alleged 'to have been made hy< appellant to appellee upon the land notes. As to their value as private memoranda, we are not here concerned. It is as to -their relevancy as probative evidence. Appellant testified that they were made by him at the time, and- were original entries. Still, we are of the opinion that they are not competent evidence. Shopkeepers’ or tradesmen’s hooks — the original entries made therein contemporaneously and in
The judgment should be affirmed.