FROM MOORE.
On the plea of payment the defendant read in evidence the following receipt, signed by the plaintiff, and dated after the sale of the slave by the defendant:
"Received July the 20th, 1826, of Thomas M. D. Reid, seven dollars, in full of all notes and accounts, or any claim or demand that ever existed between us up to the date above written."
His honor instructed the jury that the receipt might be and was evidence of payment; but that a receipt, although expressed to be in full, was only good for the amount actually paid on it, and that if the plaintiff was entitled to more than seven dollars, the receipt being only for that sum, it was only evidence of a payment to that amount; and the plaintiff was entitled to recover any balance that might be due him from the sale of the slave, over and above the amount of the receipt.
A verdict being returned for the plaintiff, the defendant appealed.
Several points were made in this case in the Court below. But as it seems to turn chiefly upon the effect of
a receipt, given in evidence by the defendant, and the opinion of the Court on that point is decisive of the cause, the others will not be noticed.
The plaintiff claims a share of the price of a slave belonging to him and others, which the defendant, as their agent, sold. On the trial the defendant gave in evidence a receipt from the plaintiff, dated after the sale and receipt of the price, for seven dollars, in full of all notes and accounts or any claim or demand, that ever existed between them up to that date. The defendant's counsel contended that the receipt was conclusive evidence of the payment of the money sued for in this action. But the judge very properly held the contrary. It certainly is not conclusive, in the sense of admitting no proof to the contrary. The Court, however, proceeded to instruct the jury that although the paper was evidence of payment, it proved the payment of seven dollars, the sum expressed in it, and that sum only. So I am abliged [obliged] to understand the judge's words. They are, "the receipt being only for that sum, it is only evidence of payment to that amount."
I think the receipt prima facie evidence that an account was stated between the parties and the balance of seven dollars then paid. It certainly is not conclusive that full payment was made. It is not conclusive of anything, Stratton v. Rastall, 2 T. R., 366, not even that the seven dollars were paid. Why this instrument, more than other writings should be subject to correction by proof aliunde it is too late to inquire. The rule is well established. For instance, the effect of this receipt would be repelled as conclusive proof of the payment of seven dollars, by showing that the payment was in counterfeit bank notes, or in a promissory note, which turned out to be bad. In either case the plaintiff might recur to his original debt, unless it was expressly agreed that it should be extinguished by the receipt of the notes. Hargrave v. Dusenberry, 9 N.C. 326; McKinsley v. (249)Pearsall, 8 Johns., 319; Tobey v. Barber, 5 Johns., 68. The receipt is open to proof that there was a mistake in stating the account, or in striking the balance, a mistake in telling the money, a mistake in the nature or value of the thing paid, and the like. All that these cases prove is that when the errors are made to appear the receipt shall not still stand as a bar. In one case, indeed, this Court has gone the length of saying that such a mistake in a receipt under hand and seal, if there was a subsequent express promise to pay the money, might be corrected; that notwithstanding the receipt, the mistake was a sufficient consideration for the promise. Smith v. Amis, 10 N.C. 469. The receipt, however, remains evidence of the facts stated in it until those facts be clearly disproved and a mistake shown. I see no reason to limit this operation of it, so as to make it evidence of one of
those facts more than another. It is presumptive prima facie proof of the whole. There must be particular circumstances to prevent its so being. Why in this case it is held by the judge to be evidence of the payment of seven dollars? Clearly because the parties say so in it. Do they not likewise say that it was in full — that seven dollars was all the defendant then owed the plaintiff? Shall this declaration go for nothing? If so, why? I admit that the payment of a less sum is not a satisfaction of a larger then due, even if it be received as such. But it appears to me that a receipt for a particular sum, expressed to be in full, is in good sense evidence that the debt itself was no more than the specific sum. If it be proved to be more than the receipt is evidence that there had been prior payments, that the parties have accounted, and that the specific sum is the balance due. This is, however, all open to proof that they had not accounted, or that they accounted touching particular dealings which did not include (250) the matter now in dispute. It is impossible to enumerate all possible cases wherein the force of the receipt might be impaired or destroyed. They do not, however, affect this case, which depends upon the effect of the receipt unexplained. Per se it proves that the defendant owed the plaintiff nothing. In Henderson v. Moore, 5 Cranch., 11, it was held that the parol acknowledgment of the plaintiff, that a small sum paid him was in full of a larger sum due on the bond sued on was evidence, on the plea of payment, that the whole was paid; and that on it the jury might and ought to presume full payment, unless such presumption should be repelled by other evidence; for a part of the money might have been paid before; and the acknowledgment is good evidence to show, not that more than a particular sum was then paid, but that the whole was satisfied by payments then and before made. And this has been carried so far as to make the payment of one debt evidence of the payment of another, and under certain circumstances conclusive evidence. Chief Baron Gilbert says, if one give a receipt for the last rent, the former is presumed to be paid; especially if the receipt be in full of all demands, then it is plain there were no debts standing out. If this be under hand and seal, the presumption is so strong that the law admits no proof to the contrary. No doubt this last is, because it is constructively a release. Gilb. Ev., 42. Cases are found in which the receipt in full, as by the judge below, has been allowed only as proof of the specific payment, and not of a general discharge. But they turn on peculiar grounds and particular circumstances. There is an instance in Middleditchv. Sharland, 5 Ves., 87. But plainly the master of the rolls refused to consider it an absolute bar, by reason of the situation of the parties, their relation to each other, and the suspicious circumstances apparent
on the answer. It was a bill filed by a devisee against a steward, who relied on a receipt in full from the textatrix. [testatrix] The bill charged the weakness of the testatrix; that the receipt was (251) obtained by imposition upon her, and without any accounts kept, stated or settled. The defendant denied the fraud, it is true. But he could not deny her imbecility, nor that there was no account stated, and he exhibited no account with his answer. This was of itself a fraud; and the cause was decided on that ground. He was bound to keep an account, and, with such a principal, to show that it was fairly settled. Therefore, a general account was there ordered, in which the receipt was to be evidence of the particular sum mentioned in it; and nothing could be juster. But there is no such case before us; and, therefore, the general rule must prevail.
PER CURIAM. New Trial.
Cited: Harper v. Dail, 92 N.C. 397; Keaton v. Jones, 119 N.C. 45.
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