26 N.Y.S. 238 | N.Y. Sup. Ct. | 1893
This is an appeal from a judgment upon the report of a referee in favor of the plaintiff and against the defendant for the sum of $496.60 recovery, together with costs. The plaintiff is the son of the defendant. He was born in 1849, and resided with his father until April, 1885, after he became of age, and until his marriage, in 1885; and, whenever not engaged in temporary employment elsewhere, he lived at his father’s home, and was treated in all respects as a member of the family. In December, 1891, he commenced an action against his father, claiming that his father was indebted to him “for a balance of an open, mutual, and current account for work, labor, and services, goods, wares, and merchandise, money loaned and paid; rent and use of property, in the sum of $1,600.” A bill of particulars subsequently rendered sets forth various items to the amount of $1,664, and concludes with stating that “the defendant is entitled to credit for board, clothing, cash, and other items, the particulars of which the plaintiff is not able, to give.” The items in plaintiff’s bill of particulars com
1874. 7½ months’ work at $20 a month...........................$150
1877. Balance due on horse trade, agreed upon at.................. 15
1877. 6,000 hoops had by defendant............................... 30 1879. Heifer, chickens, turkeys, and corn, as agreed upon........... 10
1879. Stack of hay, about 2 tons, at current prices................. 10
1882. April 26th. Note for cash loaned........................... 100
1883. Making 6,000 hoops......................................... 12
—And he allowed interest to the plaintiff upon each of these items from the 1st of January of the year following that in which they are said to have been furnished or performed. He finds that on the 26th of April, 1882, the defendant executed and delivered to the plaintiff his promissory note for the sum of $100, at the same time paying to the plaintiff money claimed by the plaintiff to have been loaned by him to the defendant, and at the time of the giving of said note by the defendant the plaintiff did not let the defendant have any other money or thing therefor. ■
The giving of the note is prima facie evidence of an accounting and settlement of accounts between the parties at that time. Sherman v. McIntyre, 7 Hun, 592; Lake v. Tysen, 6 N. Y. 461, approved Sheldon v. Sheldon, 133 N. Y. 1-6, 30 N. E. 730. The ordinary presumption is that the demands between the parties were then liquidated, and the note made for the balance found to be due from the maker. De Freest v. Bloomingdale, 5 Denio, 304. Of course, it is open to explanation that it was not given in settlement, but there is no satisfactory evidence presented in the case to rebut the prima facie evidence of the note itself. Indeed, what evidence there is rather carries the impression with it that it was given in settlement, than otherwise. The statement of both parties that no memoranda of the dealings between them were kept; the fact that the plaintiff was living at home, receiving assistance from his father; his statement in his bill of particulars that the defendant was entitled to credit for board, clothing, cash, and other items, the particulars of which he is not able to give; and.the statement by him in his evidence that he requested the defendant to settle with him, and give him a note. At the time of giving the note, the defendant testifies that “John at that time was going to Water-
MAYHAM, P. J., concurs. PUTNAM, J., concurs in result.