123 Ala. 572 | Ala. | 1898
It was held in the case of Pearson & Fant v. Thomason, 15 Ala. 700, that “if a creditor agrees with his debtor to accept in discharge of the debt a less sum in money than the debtor owes, on an overdue note, and the latter pays the sum of money so agreed, but the note is not delivered up, it is a nude pact, and cannot bar a recovery of the balance due on the note.” And it could have made no difference had the creditor evidenced this agreement and its execution by giving the debtor a receipt for the less sum and specifying therein ‘that it was received in full satisfaction of the note. As the law then stood the agreement would have been wholly inoperative for the Avant of consideration, and the receipt Avould not have aided the transaction though' both parties may have intended full satisfaction of the debt, and the receipt may have been executed by the creditor and taken by the debtor as evidence of such intended consummation. If the law as thus expounded in Pearson & Fant v. Thomason, supra, Barron v. Vandervert, 13 Ala. 232, and other of our early cases Avere the laAV at this time, it is altogether clear that the receipt by the Tennessee Implement Company of Hodges’ check for a part of the sum due on his note to the company but purporting to be in full payment of said note, and the collection of said check by the company and retention to this day and appropriation by it of the proceeds of the'check, would not constitute payment and satisfaction of the debt in full, e/ven had both parties so.intended it, and a receipt had been passed eAddencing such intention. It Avould be a nudum pactum and constitute no bar to a subsequent action for the balance of the debt, the note not having been surrendered. That is the law today, with this exception, that by virtue of the statute now of force, “all receipts, releases, and discharges in
Affirmed.