13 N.C. 247 | N.C. | 1829
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 *157 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,
PER CURIAM. New Trial.
Cited: Harper v. Dail,
(252)