Trimmier v. Thomson

10 S.C. 164 | S.C. | 1878

The opinion of the Court was delivered by

Haskell, A. J.

The action is upon a joint and several sealed instrument for the payment of an annuity to Peyton Simmons by T. O. P. Vernon and H. H. Thomson. The plaintiff is the administrator of the goods and effects of the obligee. The defendants are one of the original obligors and the surviving executors of the other. The latter and the plaintiff both appeal.. The exceptions which constitute the grounds of appeal are numerous, but may be to some extent classified, and will be considered in the order of the questions to which they respectively pertain.

The first three and the sixteenth grounds of appeal, on the part of the defendants, relate to the first point made in the defendants’ answer — “That the plaintiff should not maintain his action because he had joined in the same action as joint defendants the living obligor, T. O. P. Vernon, and the surviving executors of the deceased co-obligor, H. H. Thomson,” — and to the further point that the plaintiff had entered up several judgments upon a single verdict. It is not disputed that the executor of a deceásed co-obligor of a joint and several bond may be sued by the obligee. The question is, can the executor be sued together with the surviving obligor in the same action as the deceased co-obligor might have been in his lifetime? Under the former practice in this State, on the decease of one of joint debtors the remedy was by action at law against the survivor, and, further, by a proceeding in equity by which representatives of the deceased were brought in and the estate made liable. The same was the rule in case of an obligation which was both joint and several, with the additional power on the part of the creditor to bring a separate action at law against the representatives of the deceased as well as against the survivor. The reason why the action at law could not be brought jointly against the survivor and the representatives of the deceased is thus stated in Ayer vs. Administrator of Buford, (2 Mill., 319): “Because the same judgment cannot be rendered against both. The judgment against the survivor would be de bonis propriis, and that against the representatives of the joint contractor de bonis testatoris.” See also Chit. Plead., 50.

The question now is, whether the practice as thus established has been changed by the Code of Procedure, which was designed “ to revise, simplify and abridge the rules, practice, pleadings and forms of the Court,” and “that justice may be administered in a uniform mode of pleading without distinction between law and equity.”— Const., Art. V, § 3.

The rule of pleading and practice in cases on contracts joint and several, as above stated, was purely technical, arising, not from the nature of the contract which was the cause of action, but from the inflexibility of the forms of proceedings in the Courts of law, which forced recourse to the Court of Equity. It thus presents one of those instances which the Code was designed to rectify, and we think that it has done so. “Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein.” — § 141.

“Persons severally liable upon the same obligation or instrument ***** may all, or any of them, be included in the same action at the option of the plaintiff.” — § 143.

As to the liability of the appellants, defendants, in their representative character, had the action been brought against them alone, there can be no doubt; and the fact that their testator was jointly as well as severally liable cannot exclude them from the provisions of this Section, and they are manifestly within the scope of Sections 141 and 143. The Court is aware that there has been conflict of decision in other States upon this point; but, with all deference to the learning and ability of the opinions from which this Court derives aid in construing a new form of procedure, nevertheless they are not of authority, and in this instance the words and the intention of the Legislature are so entirely in harmony with each other that the Court experiences little difficulty in arriving at a conclusion. — Pomeroy on Rem., 354, § 304. ■

“ The only pleading on the part of the defendant is either a demurrer or an answer.” — § 166 Rev. Stat., p. 605. •

It is further provided in Section 167 what shall be grounds of demurrer: 1. To the jurisdiction. 2. To the legal capacity of the plaintiff to sue. 3. That there is another action pending, &e. 4. That there is a defeat of parties. 5. That several causes of action have been improperly united. Certainly neither of the first four touches the present case, nor does the fifth, for there is but one “cause of action,” and the question arises on the joinder of several parties on this single cause.

The last (6) ground of demurrer is “that the complaint does not state facts sufficient to constitute a cause of action.” But it is unquestionable that upon a joint and several contract, as this is, the obligee has a right of action against the executors of a deceased obligor. Every case of misjoinder of parties is covered by the sixth subdivision of Section 167; and if there be in the complaint a cause of action against the party and it be not prevented upon one or the other grounds of demurrer, the case must go to trial. Thus circuity and multiplicity of action are prevented by dispensing with the necessity of proceeding by distinct suit in equity or by a separate action at law. This disposes of the question, but it is proper to notice that if the answer of Vernon and the Thomsons was joint, as would be inferred from the brief, it is certain that the defendant, Vernon, had no ground for demurrer, and it is, to say the least, questionable whether the demurrer could have been sustained for either, when jointly madé, unless it was good for both. The question of the two separate judgments upon a single verdict still remains, and upon this the statute may not be so clear; but upon reflection the Court has arrived at the conclusion that such is the proper mode. In his commentaries upon the subject, now being considered, Mr. Pomeroy (p. 354, § 304; p. 446, § 407,) deems it hardly necessary to argue to show that the separate judgments must be entered up against the several defendants when the nature of the case so demands. In the cases cited by him (Burgoyne vs. Ohio L. J. & T. Co., 5 Ohio, 586; Churchill vs. Trapp, 3 Abb. Pr., 306; Eaton vs. Elger, 47 N. Y.,) it is held that whenever it is determined that the executor of the deceased co-obligor can be joined with the survivor in an action the judgments should be separate, one against the survivor de bonis propriis and the other against the representative of the deceased de bonis testatoris. And, further, it is held that this is not only a logical sequence of the preceding provision, but that it is clearly comprehended within the permissive provisions relating to judgments themselves. — § 298 Rev. Stat., p. 639. And in these decisions we concur.

In the language of Dixon, C. J., in Decker vs. Trilling, (24 Win., 610,) cited by Mr. Pomeroy, it seems clear “that the judgment should follow the nature of the claim established; and if that is separate and several, as against each defendant, then the judgment should be so.” The verdict finds the fact and the Court adjudges accordingly. No practical difficulty arises in forming the judgment roll where (under Section 298) there may be several judgments, some for certain of the defendants, and another or others for plaintiff, &e., for in Section 305, which prescribes what shall constitute the judgment roll, it is expressly provided that it shall be the “pleadings or copies thereof and a copy of the judgment.” Thus, for each of the separate judgments, a copy of the pleading would be attached.

But even if the Court had arrived at an opposite conclusion on this point, the judgment would not be severed, but amendment would have been ordered under Sections 197 and 199, the error being such as would not have affected “ the substantial rights of the adverse party.”

The next point in the order adopted is the sixth ground of appeal — that the Judge erred “ in refusing to charge the jury that if they believed that the bond sued on was the individual property of F. M. Trirnmier, then that the plaintiff should not recover in the action.” It was admitted, and in fact proved, by the evidence produced by defendants, that Trirnmier was .administrator, and, as such, brought the action on the bond, which was of the goods and effects of Simmons, deceased. There was no proof that the bond was the property of Trimmier. Thé only proof was that he had bought the interest of the legatee, which could not be ascertained until after the payment of debts, and it was proven that no debts had yet been established.

The personal estate of the déceased vests in the administrator.— 1 Wins, on Exec., 546. “At this day the administrator represents the person of the intestate in relation to his personal estate, which vests in him immediately on the grant of letters of administration, and such grant has relation to the time of the intestate’s death.” It therefore makes no difference that Trimmier bought the interest of Mrs. Simmons before he took out letters. “He is to be regarded as a trustee, in whom the property of the intestate vests by operation of law, for the use of all those who may be legally entitled to the same, and who is authorized to collect and dispose of the same according to law. * * * As the legal representative of the deceased, he has the same property in the goods of the intestate as the intestate himself had when living, and the same remedies to recover them.” The heirs or legatees “have no right of property or right of possession till after partition or delivery by the administrator.” — McVaughter vs. Elder, 2 Brev., 307; Johns vs. Johns, 1 McC.; Seabrook vs. Williams, 3 McC., 371; Davis vs. Rhame, 1 McC. Ch., 191; Gregory vs. Forester, 1 McC. Ch., 318; Farely vs. Farely, 1 McC., 506; Bradford vs. Felder, 2 McC., 168. The administrator was, therefore, the party to bring the action, and the Judge properly instructed the jury “that the plaintiff could, as administrator, sue upon the bond.”

The charge asked for by the defendants was wrong, because the point in it was not in the case, the evidence being conclusive, and the fact admitted that the plaintiff did hold the bond as administrator.

The eighth, ninth, tenth and thirteenth grounds of appeal on the part of the defendants are, whether the Judge should charge the jury that the transaction on which the contract was based was not a sale but a hire of the slaves, which were the consideration. It would have been improper had the Judge instructed the jury, as requested, “ that a contract to furnish the services of a slave for a number of years is not a sale of the slave; that such a contract amounts in law to a hiring only.”

There was really no such issue of fact in the case. The sole evidence upon the nature of the transaction was the statements alleged in the bond on which the action was brought, and in the deed from Simmons to Yernon, which was produced by the defendants. In reference to the legal meaning of the words therein contained, the Judge instructed the jury “ the transfer of the slaves by Simmons to Yernon was not a hiring but a sale,” and to that exception is taken. The words of the deed are as follows: “ Have this day sold, bargained, conveyed and made over and transferred, and do by these presents sell, bargain, convey, make over and transfer, all the following named negro slaves, to wit, * * * with all their increase, that is to say, all my right, title and claim to the said negro slaves; said right, title and claim being and during the term of my natural life, and said negro slaves being the same heretofore conveyed by me to James W. Cooper, Jesse Cooper and Thomas Cooper in several deeds, in which several deeds the life estate, conveyed as above to said Vernon, was reserved,” with the usual warranty of title and special warranty against certain claims. The delivery of the slaves in execution of the terms of the deed is admitted. There was not a tittle of other proof of hire, and the only question was whether the words of the deed constituted a bill of sale. On that point the instruction given by the Judge was proper. It is possible, however, that the defendants meant that Peyton Simmons was but a hirer of the slaves himself and could convey or sell'no more than what he had.

The meaning of the language in the deed is that the legal title to the property was vested in the Coopers, to take effect at a future day, while Peyton Simmons had in the property a life estate, which he had reserved for himself in his deeds to the Coopers.

The character as well as the legal existence of such an estate, in. slaves, is discussed and determined in the case of Alexander vs. Burnett, (5 Rich., 189,) and Jaggers vs. Estes, (2 Strob. Eq., 343,) and the eases therein cited.

The estate held by Simmons had not the features of a bailment or hire. There is no contract by the Coopers as bailors; no price for the hire; no reward for the use of the chattels, which is the evidence of hiring. A man cannot hire from himself the use of his own chattels. Simmons remained the possessor of a legal right which had never passed out of him ; it consisted of the possession, use and absolute control of the property during his life, with power to convey the whole or part of his interest. He could have hired the property to Vernon for a stipulated time and price, or he could have sold his right, title and interest. The words of the deed are conclusive that he did the latter, and no proof was offered to the contrary. It was a question of legal construction, and the charge of the Judge was proper. If the title held by Simmons was not by him as bailee of the Coopers, but was the reserved right of possession and use, with which he had never parted, and of which he was the legal owner, and he sold and conveyed that right to Vernon, then Vernon occupied the position that Simmons had and cannot be said to be bailee either of Simmons or of the Coopers.

The principles in the cases of Corley vs. Kleckley, (Dud., 35,) Bacot vs. Parnell, (2 Bail., 425,) and Ripley vs. Wightman, (4 McC., 447,) therefore, are not applicable to the present case. It having been a sale of the property, the question of the effect of emancipation does not require consideration, having already been fully determined.—Calhoun vs. Calhoun, 2 S. C., 304.

The seventh and fourteenth grounds of appeal are upon the liability of Simmons’s estate to the Coopers (from whom Vernon and Thomson subsequently purchased certain of the slaves) on failure to deliver the slaves at Simmons’s death ; and, second, whether the estate was discharged from that liability by the Act of emancipation. The Judge could not charge upon the first point as requested, for it was not consistent-with the testimony in the case. The admissions and the evidence on the part of the defendants establish the fact that the slaves alluded to in this part of the defense actually were delivered long before the death of Simmons. The recital in the bond, which is part of the complaint, alleges the delivery of certain slaves by Simmons to Vernon. The defendants in their answer admit the fact, and further prove that they, Vernon and Thomson, subsequently purchased the interest.of the Coopers in certain of the said slaves — being the portion referred to by the defense. It was also proved by the defendants that Thomson had an equal interest with Vernon in the slaves as purchased from Simmons. Thus they had acquired both title and possession, and rendered the delivery by Simmons’s estate an impossibility, and are estopped from any such defense. By combining the titles of the Coopers and Simmons’s life estate, and having possession of the seven slaves named, the defendants held a good title and emancipation is not a breach.—Calhoun vs. Calhoun, supra. It is as if Simmons had conveyed the slaves to Vernon in 1855 absolutely.

The questions in the fifth and eleventh grounds are on matters of pleading and practice. The defendants claim that they should have had the reply, and that the allegation of uúsoundness in their answer, not having been denied, should have been taken as true and admitted by the plaintiff. The plaintiff was not bound to reply to Section 8 of defendants’ answer alleging unsoundness of the slaves, unless it contained matter constituting a counter claim.— Code, § 176.

In the first place, if the answer contains a defense and a counter claim, “they must each be separately stated and refer to the causes of action which they are intended to answer.” — § 173.

There are defenses in answer to complaint which in themselves are cause of action, and may have been set up as counter, claims had the defendant so elected. But when such defense is set up and it is not stated that it is a counter claim, and there is no prayer for judgment on it, it will, for purposes of pleading, be regarded as a mere defense, and the plaintiff will not be forced to reply. The plea of unsoundness is more properly a defense, although it is sometimes a cause of action. A counter claim properly sets up a cause of action and prays for judgment. Paragraph 8 of the answer does not meet the requirements. It neither alleges covenant and breach, nor does it demand judgment. Whatever it does allege could have been proved under a general denial. The facts would perhaps have entitled defendant to affirmative relief, for the Code goes to a great extent to allow judgment upon the case made at the trial; but the allegations as they stand do not upon the face of the pleadings set up a counter claim. The position of the respective parties during the trial is, therefore, unaffected, nor is the plaintiff called on to reply. — Code, § 191.

The defendants in the 7th and 14th grounds, already considered, again contend to have a counter claim as assigns of the Coopers. The same rule applies. They did not set it forth in the pleadings as a counter claim, and they controvert it by admitting and proving delivery. There was nothing, therefore, either to entitle the defendants to the reply or to make it error on the part of the Judge to instruct the jury “that the emancipation of the slaves did not affect plaintiff’s right of recovery in this action, and that the emancipation of the slaves relieved Peyton Simmons’s estate from any liability for non-delivery of the said slaves to the Coopers or their assigns.” The fact, as proved by the defense, being that they actually had been delivered, the charge on that point is immaterial.

The fourth ground of appeal on the part of defendants will be taken up in connection with points submitted by the plaintiff, who is likewise appellant upon the following grounds: First. “That a written warranty of title alone excludes the warranty of soundness usually ‘implied from a sound price.’” The contrary has been determined in the case of Wells vs. Spear, (1 McC., 421,) and sustained by subsequent decisions.

Ever since the cases of Wells vs. Spear and Hughes vs. Banks, it has been held that the implied warranty of soundness is not excluded by a written contract of sale, though it be a specialty and contain a warranty of title.—Wood vs. Ashe, 3 Strob., 70. And in Habersham vs. Rodrigues, (1 Spear, 314,) the extent of the rule is defined, but its principle is confirmed. The further appeal — “that the obligors could not be released from their obligation except by deed or by parol for valuable consideration, and in the latter case the consideration must be proved,” — is closely allied to the point just considered. Upon the principle that a sound price entitles the purchaser to a sound article, a total failure of consideration is an entire discharge of the obligation and the obligor is released. The Judge, therefore, properly refused to charge as requested.—Timrod vs. Shoolbred, 1 Bay, 324; Missroon vs. Waldo, 2 N. & McC., 77; Com. vs. Smith, 9 Rich., 515; Casten & Harden vs. Walker, 2 Rich., 40.

Upon this principle of implied warranty of soundness, it is held in all the cases that evidence of the unsoundness of the property must be admitted. Therefore, “testimony as to the value of the hire of the slaves,” or, in correct language of the brief, testimony “ to prove the value of the hire of a lot of negroes, such as is above described,” was unexceptional as a measure of the damages affected by the alleged unsoundness. In this connection comes up the defendants’ fourth ground of appeal — “that the Judge erred in refusing to allow T. O. P. Vernon to testify as to the condition of the slave Beck and as to the expense incurred in providing for said slave.” It was not alleged in the answer that this slave was unsound, and the words used indicate that the testimony was not upon unsoundness, on which point the Judge had already ruled. It is immaterial upon what use the testimony was, for on no other quality of the article than soundness is there any implied warranty, and evidence upon any other point is inadmissible.

The plaintiff farther contends “that the retention of the slaves for ten years without complaint or offer to return them to vendor, and the payment of the annuities for six years, estops the vendees from pleading failure of consideration,” and cites Mitchell vs. DuBose, 1 Mill., 362. The case is not similar and does not decide the point. The payment of an annuity for part of the -time is only partial payment, and it will be found on examination of the authorities that the defense remains as. long as the right of action continues.

Byers vs. Bostick, 2 Mills, 76: “A deficiency in quantity or a defect in quality or title may now be relied upon either in abatement of the price stipulated or in rescission of the contract in toto.”

“ It is an equitable defense, superseding the necessity of a cross action by the defendant, whose plea is that to the extent.of the diminution in value by reason of the breach of warranty the contract was void ab initio; and, by a parity of reason, where there is a total failure of consideration, it may be shown in bar of the action. Such a defense grows out of the contract itself, which is the cause of action, and is not barred by the Statute of Limitations.” — Evans vs. Yongue, 8 Rich., 113.

The implied warranty subsists along with the written contract.—Wood vs. Ashe, 3 Strob., 72.

But the case of Parker vs. Pringle (2 Strob., 242,) is to the point: “The question argued was whether the defendant could in any case avoid the payment of the whole price without a return or tender. * * * * All our cases agree that an action may be brought for breach of warranty without a tender or return, and the same rule applies when the same defense is made under our discount law. The effect is that the buyer keeps the article purchased, but he must pay for it such price as it may be worth in its unsound, defective state.”

In that case partial payment had been made. It thus is clear that so long as the right of action exists the right of defense coexists, and a tender or return is not necessary, nor is a partial payment a waiver of the right to defend.

It is further excepted to by the plaintiff that there were admitted in evidence “three notes given by plaintiff’s intestate to M. C. Barnett, administrator of J. W. Cooper, as evidence of payment by said Cooper on bond of defendants.” The notes were evidence of transactions between Simmons and one of the Coopers. Mrs. White, a witness produced by the defendants, testified, without objection being made, “that money was paid by the Coopers on the bond up to the freeing of the slaves.” This was not contradicted, and it may be that these notes may have been corroborative, so far as they showed dealings between the parties, and to that extent they were admissible. And there is no evidence that the jury was not properly instructed on this point, or that any request on the part of the plaintiff was refused.

It is further objected by plaintiff that the Judge refused to charge “that the agreement between T. O. P. Vernon, H. H. Thomson and the Coopers to divide between themselves the payment of the annuities on said bond was not binding on plaintiff’s testator.” And that he refused to charge that the writing on the margin of the bond sued on is not evidence that he released either of the obligors to said bond “from the payment of any part of said bond.” It was unnecessary for the Judge to charge that an agreement between the defendant and third persons did not bind the plaintiff. That was not the question, and it would only confuse the jurors to burthen them with legal propositions not in the case. The allegation was that an agreement had been executed and that Simmons was a party to it. The existence of an agreement was proved and seems to be admitted by the plaintiff. The question is, did Simmons recognize that agreement and bind himself by its terms? It is evident that the jury decided this issue in favor of the plaintiff and that the verdict was not affected by the charge of the Judge — at least to the injury of this appellant. It is, then, only left to this Court to decide whether there has been an error at law which requires the case to go back for a new trial.

The charge by the Judge, to which exception is taken, is, in effect, the same as a refusal to charge as requested by the plaintiff. For, if the writings on the bond were evidence of a release and the terms of the release were the same as those contained in an agreement between some of the parties, then the writings on the bond might be taken as evidence that the agreement existed, was recognized and was instrumental in effecting the release. Payment or satisfaction is a release either in toto or pro tanto. If the writings on the bond were evidence of the satisfaction of the whole or of a part of the bond, then the defendants are to that extent released. And certainly anything which contains evidence, however slight, on the point in issue must go to the jury. The bond and the ■writings thereon were attached to the complaint as an exhibit and constitute a part thereof and are allegations by the plaintiff. The portions of the marginal writings and endorsements in question are as follows:

“ Received, 22d February, 1861, thirty-five dollars, the amount due by the estate of H. H. Thomson, deceased, from Waddv Thomson, executor, including interest from 8th June, 1860, and paid same to Peyton Simmons.

“ J. D. WRIGHT, Attorney.

“April 2, 1861.”

“November 3d, 1859, received of the executors of PI. H. Thomson, deceased, thirty-four dollars and twenty-nine cents, their portion of the annuity above named, principal and interest, from the first day of June last.

“ P. SIMMONS.

“ Test:

“ R. C. Code.”

And in the handwriting of J. D. Wright, in ink, “Jesse Cooper, one-third; H. H. Thomson, portion one-half of one-third; T.-O. P. Vernon, the same; James Cooper, one-third.”

The figures in the receipts, allowance being made for the interest, concur with the figures of apportionment written below. These receipts may be taken as evidence of an acknowledgment on the part of Simmons that $33.33 per annum constituted full payment of the obligation he held against H. H. Thomson; and if such were established to be the fact it would operate as a release, for it would be equivalent to payment. It is immaterial, in this case, whether the payment of the- balance ($166.66) was by money or by a subsequent agreement of equal rank with the first. As to the character of the alleged agreement, it was not called for or questioned, and it is now too late to object to defect of evidence on that point.— Petigue vs. Sanders, 2 Bail., 549.

Whether the receipt was for a portion paid by executors of H. H. Thomson, or for the whole amount for which Thomson’s estate could be held liable, is, we think, a question which might go to the jul7-

If it be an acknowledgment that $33.33 is the whole amount for which Thomson is liable, it is evidence of a release. The exception that “ there was error in refusing to charge that the obligors could not be discharged except by deed or by parol for valuable consideration, and that the consideration in such case must be proved,” again comes up in this connection. The case of Corbett vs. Lucas & Dotterer (4 McC., 323,) is relied on by the appellants.

The comparatively recent case of Hope vs. Johnston & Cavis (11 Rich., 135,) confirms the decisions in previous cases., although there is a very strong dissenting opinion by Munro, J., and, were the cases similar, the Court would be bound by the authorities.

In note by the Reporter to Hope vs. Johnston & Cavis is given a circuit decree by Wardlaw, Ch., as follows: “A debt can be extinguished only by accepting a security of a higher nature, (Mills vs. Starr, 2 Bail., 360,) or by actual payment, or by a release, or by some contract equivalent to a release. Payment of money simply on a demand in money amounts merely to a payment pro tanto, and a receipt in full, on such partial payment, is not conclusive, and, as nudum pactum, “ may be avoided on proof that payment in full was not actually made. Such a receipt is a mere admission of the party, and, like all admissions, susceptible of explanation and disproof. — Pinnel’s case, 5 Co., 117; Eve vs. Mosely, 2 Strob., 203; Boulware vs. Harrison, 4 Rich. Eq., 317.” A receipt is prima facie evidence of payment, being the written affirmation of the creditor.— Dobbin vs. Perry, 1 Rich., 33; Wheeler vs. Alexander, 1 Strob., 61.

In Hope vs. Johnston, and in Eve vs. Mosely, “ the fact of the payment, being but partial, stands admitted before the Courtand in the latter case it is said that, without such admission that the payment was only partial, “ the receipt would have been evidence of payment of the judgment in full; and if that were contested it would have been a proper subject for an issue.” In Cumber vs. Wane (1 Smith’s Lead. Ca., 451,) “the preceding remarks refer to the question of the legal effect of a partial payment, alleged to have been received in full, when the proof of the payment being but partial stands admitted before the Court. But upon the question whether in point of fact the whole debt is or is not paid, it appears that the acknowledgment of the creditors that the payment is in full is not only competent evidence but is prima facie evidence that the whole is paid. The case of Henderson vs. Moore (5 Cranch, 11,) is a strong case to this effect.” In that case the opinion by Marshall, C. J., is directly to the point: “A part of the money due on the bond might have been paid before, and such an acknowledgment upon the receipt of a sum smaller than the amount of the condition of the bond was good evidence upon the plea of payment.” This conclusion is entirely in accord with the dictum of the Court in Eve vs. Mosely, and not in conflict with the decisions, and appears to sustain the ruling of the Judge in the present case. The receipt is evidence of payment, and it is a question for the jury whether it acknowledged payment in full or in part. It is immaterial whether the payment of the balance had been by money or by release; if the receipt be a receipt in full it is prima facie evidence of payment, and the lack of consideration must be proved by the plaintiff.

To these questions of fact the receipts themselves and all other evidence which may explain the ambiguity of the receipts alike are pertinent and admissible.

The judgment of the Court below is affirmed and the appeals are dismissed.

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