McElwee v. Hutchinson

| S.C. | Jan 18, 1879

The opinion of the Court was delivered by

McIver, A. J.

There can be no doubt but that, as a general rule, the defense of payment to an action on a note cannot be given in evidence under a general denial. This rule, however, only applies where the complaint is in the usual form, stating only such facts as are necessary to constitute a cause of action. If, however, other facts are stated, a denial of which raises an issue as to whether there has been a partial or total payment, then the defense of payment may be given in evidence under a general denial. As is said in Pomeroy on Remedies, (§ 691, p. 717,) after explaining the nature of “new matter” relied upon as a defense: “It cannot, then, be said, for example, that payment is always new matter, for the plaintiff may so construct his complaint that facts showing payment will be directly contradictory of a material averment embraced within it, and, therefore, plainly admissible under the general denial.”

And again, in Section 692: “A particular defense may, therefore, when set up-in answer to one complaint, be new matter and require to be pleaded; the same kind of defense, when set up in answer to another complaint, may. not be new matter, but may be proved under the general denial without being specially pleaded. Undoubtedly the defense of payment, in its various phases, is the one which most frequently assumes this double aspect.” The writer proceeds, amongst other authorities, to cite two cases, Quinn vs. Floyed, 41 N.Y., 349" court="NY" date_filed="1869-12-21" href="https://app.midpage.ai/document/quin-v--lloyd-3586711?utm_source=webapp" opinion_id="3586711">41 N. Y., 349, and White vs. Smith, 46 N.Y., 418" court="NY" date_filed="1871-11-10" href="https://app.midpage.ai/document/white-v--smith-3628017?utm_source=webapp" opinion_id="3628017">46 N. Y., 418. In the former the action was to recover for work and labor. The complaint stated the agreement, the performance of services at a stipulated price, and that on a certain day named the defendant was indebted to the plaintiff in the sum of three hundred and thirty-three dollars, being the balance remaining due after sundry payments made by the defendant to the plaintiff. The answer was a general denial, under which the Court held that defendant could offer proof of payment. In this case Lott, J., said “the denial involvéd an issue upon all the facts above stated and denied, not only of the agreement and of the time which the plaintiff worked, but necessarily of the different payments made, so as to determine what in fact was the balance of the defendant’s debt. The balance could not be ascertained without an inquiry as to the amount of the payments as well as the value of the work performed;” and Woodruff, J., said: “It was not necessary for tbe plaintiff to sue for a balance as such. He might allege the contract performance on his part and claim payment; and then if the defendant desired to prove payments he must allege payment in his answer. But where the plaintiff sues for a balance he voluntarily invites examination into the amoúnt of the indebtedness and the extent of the reduction thereof by payments.”

In White vs. Smith the action was for work and labor, in which the complaint alleged the services to a specified amount in value, and that there was a balance due the plaintiff, after deducting all payments made by defendant to plaintiff thereon, of $175. The general denial, it was held, entitled the defendant to prove all the payments which he had made. In the case now under consideration, the complaint, in the first paragraph, alleges the making of the note with its date and amount. In the second paragraph sundry payments are stated, and in the third paragraph the allegation is that there is a certain specified sum still due and owing, with interest from a certain date, (which is the balance due on the note after deducting the first payment stated in the preceding paragraph,) less the aggregate of the other payments stated, and demands judgment for such balance. This, we think, amounts to an allegation that nothing had been paid upon the note except as stated in the complaint, and that it was not subject to any other or larger credits, and, therefore, upon the principles above stated, the receipt, which was objected to as incompetent evidence, was admissible under the general denial, especially when it appears, as it does in this case, that the receipt was for a larger amount than that stated in the complaint. It may be very true that this excess might be accounted for by the costs in the case in which it was taken, but that would not affect the question of its admissibility as evidence, for it would be necessary to show the whole amount paid in order to show from what amount the costs were to be deducted, and in this view the receipt was clearly admissible in evidence. In addition to this it would seem from the “ ease ” submitted to us that the receipt in question was actually put in evidence by the appellant’s counsel, though, doubtless, from what was stated in the argument here, such was not his intention.

We do not think, therefore, that the motion here .can be sustained on the ground that the Circuit Judge erred in receiving testimony tending to show that the payment made on the 1st of February, 1869, was intended to be in full discharge of the balance due on the note. There was no exception to that portion of the charge in which the jury were instructed “that while an attorney could not compromise a claim without his client’s authority, they might consider the question whether by so long a delay before bringing the action McElwee had not ratified his attorney’s acts, if, in fact, he had given no authority in the first instance,” and therefore we are not called upon to consider it. If, as was contended here, this portion of the charge was nullified by the principle of law charged at the plaintiff’s request, he certainly has no ground of complaint. While payment in part of an ascertained debt cannot be regarded as satisfaction of the whole, even where the parties so agree, unless there is some additional consideration for such agreement, or unless the balance is released under seal, yet, where a pending suit is compromised by payment of a part of the amount appearing to be due, such an agreement may rest upon the withdrawal of the defense as a sufficient consideration. As to the other grounds relied upon by the appellant, they are disposed of by the case of Brickman vs. South Carolina Railroad Company, 8. S. C., 173.

The judgment of the Circuit Court is affirmed.

Willard, C. J., and Haskell, A. J., concurred.