95 Ala. 592 | Ala. | 1891
Tbe case was tried by the court without the intervention of a jury, and the court rendered judgment for the defendant.
It appears from the evidence that plaintiff was indebted to the Western Union Telegraph Company in the sum of thirty dollars, and that the Age Publishing Company was indebted to him in a similar amount. On October 31,1888, the Age Company, by its agent, gave an order upon the defendant “to make an overcoat for Ed. E. Williams [plaintiff], not to exceed thirty dollars, on Age account.” The price agreed upon for the coat was $32.50. The coat was made, but defendant refused to deliver it to plaintiff without the payment of the purchase price. The plaintiff insisted that the defendant accepted the order of the Age Company for thirty dollars as so much cash, and in absolute payment to that extent for the coat. The defendant controverted this statement, and insisted that the order was not taken as an absolute payment pro tanto for the coat.
Parties sui juris can make such contracts as they see proper, provided they do not contravene some statute or public policy. Prima facie a debt is payable only in money, but by agreement a debt may be made payable in any kind, of property of value. The burden to prove that the creditor agreed to accept anything other than money, rests upon the debtor. The mere acceptance by the creditor from his debtor of a check on a bank, or the obligation of a third person, without more, will not be regarded as other than a conditional payment. It requires proof to the effect that the parties understood and agreed that the check or property should be received as a payment, and that it was so accepted, before it will be considered that the check or property was received in absolute payment of the debt. Born v. First Nat. Bank, 123 Ind. 78; 18 Amer. St. Rep. 312; Holmes v. Briggs, 131 Penn. St. 233; 17 Amer. St. Rep. 804; Bank v. Buchanan, 10 St. Rep. 617; Caldwell v. Hall, 49 Ark. 508; 4 Amer. St. Rep. 64; Lowery v. Murrell, 2 Porter, 280; Carriere v. Ticknor, 26 Ala. 575; Lee v. Fontaine, 10 Ala. 755; Pearson v. Thomason, 15 Ala. 700.
Again, Williams, the plaintiff, can have no greater interest in the overcoat, or claim against the defendant, than the Age Publishing Company would have, if, instead of directing the overcoat to be made for Williams, the order had directed
Affirmed.