65 So. 849 | Ala. Ct. App. | 1914
The only question is whether or not the mortgages that appellant failed upon written demand to mark “satisfied” on the record, as required by section 4900 of the Code, had been paid before the making of the demand. Upon the theory that there was no evidence tending to show such payment and satisfaction, he, the appellant, defendant below, requested the affirmative charge, the refusal of the court to give which is the only error assigned.
On this subject the plaintiff testified in effect that he did not pay the mortgages off in cash, but that he delivered to defendant two mules, a wagon and harness, $35 in cash, a quantity of corn and cotton seed, and some plow tools and farming implements, which, by agreement between him and the defendant, the defendant was to and did accept in full satisfaction of the mortgages.
If the jury believed this, then the mortgages were settled in full, although the cash value of the property so delivered and accepted was, as shown by defendant, not equal to the amount admitted to be due on the mortgages. The general rule undoubtedly is that where the debt or demand is liquidated or certain, and is due, and not in dispute, payment by the debtor and receipt by the creditor of a less sum is not a satisfaction thereof, although the creditor agrees to accept it as such, if there be no release under seal or receipt in Avriting (Code, § 3973).- — Louisiana Lumber Co. v. Farrier, 9 Ala. App. 388, 63 South. 788; Scott v. Rawls, 159 Ala. 399, 48 South. 710; Hodges v. Tenn. Imp. Co., 123 Ala. 572, 26 South. 490; Hand Lumber Co. v. Hall, 147 Ala.
It follows that the court did not err in refusing the affirmative charge, and that the judgment must be affirmed.
Affirmed.
