Tobey v. Barber, 5 Johns. 68

Tobey v. Barber

5 Johns. 68 | N.Y. Sup. Ct. | 1809

[VXn Ness, J.

The question is not, whether there was an extinguishment of the rent; but whether the note ■was accepted in payment.] "

I contend, then, that there is no evidence of such an acceptance.

The receipt contains the written agreement of the party to accept the shares in full satisfaction of the rent.

*72[Spencer, J.

Suppose a recéipt given for bank notes/ which afterwards prove to be forged,' would that be conclusive evidence of a payment ?]

That would be a fraud,- and therefore no payment ; for it is admitted, that where there is fraud or mistake, the receipt may be explained. If there was any condition, it ought to have been mentioned in the receipt. You cannot, afterwards, vary the terms of a writing," deliberately made and signed by the party.

Per Cúridm.

It has been repeatedly held in this' court, that a receipt is an exception to the general rule/ that a writing cannot be explained or contradicted byparol. (1 Johns. Cas. 145. 2 Johns. Rep. 378.) The grossest abuses and fraud' would be practised upon the ignorant and unwary, if receipts were to be deemed, conclusive, and not open to examination. The weight of this inconvenience has been' felt and avoided in other courts as well as in our own. (2 Term Rep. 866. 5 Ves 87. 1 Peters' Adm. Rep. 179, 180.) The parol evidence was, then, admissible in this case, to show that the receipt of the 24th of September, 1803, though purporting to be in full for two quarters’ rent, was founded partly on a note given by one Coffin to the plaintiff, by the procurement of the defendant; and that Coffin became insolvent before the note fell due, by which means the note was not paid. The taking of the note was no extinguishment of the debt due for the rent. It is a rule well settled, and repeatedly recognised in this court, that taking a note, either of the debtor or of a third person, for a pre-existing debt, is no payment, unless it be expressly agreed to take the note as payment, and to run the risk of its being paidor unless the creditor parts with the pote, or is guilty of laches in not presenting it for payment in due time. He is not obliged to sue upon it. He *73Inay return it when dishonoured, and resort to liis original demand. It only postpones the time of payment of the old debt, until a default be made in the payment of the note. (1 Salk. 124. 5 Term Rep. 513. 6 Term Rep. 52. 7 Term Rep. 66. 1 Esp. N. P. 3. 1 Cranch, 181. Herring v. Sanger, January term, 1802, and Roget v. Merritt and Clapp, 2 Caines, 117.) There is no evidence in this case, that the plaintiff agreed to run the risk of the solvency of Coffin, and to take the note as absolute payment, except it be the inference arising4 from the receipt itself, and that is not enough to establish such a positive agreement. The case of Murray v. Gouverneur & Kemble, which was decided in the court of errors, in February, 1800, on an appeal from a decree in chancery, is in point, as to the question before us ; for it is to be observed, that the rules of evidence are generally the same in cases of law and of equity. It was there decided, that receipts were explainable, and that a bill was not a discharge of a precedent debt, unless by express agreement; and that a receipt of a bill as cash was still not sufficient evidence that the bill was taken as an absolute payment.

As to the receipt for the turnpike shares, it does not, even on the face of it, purport that those shares were tak'en as an extinguishment of the rent; and the parol evidence is decisive that they were offered by the defendant, and received hy the plaintiff, as a security iffierely.

The motion for a new trial must therefore be denied.

jMotion denied.