Carrier v. . Jones

Boyden, J. Jones and Craton plead that they have both been released and discharged by the plaintiff, and they rely upon the following two receipts to establish this defence. The receipt of Gilkey is as follows: “Received of John Gilkey, twenty-three dollars and ninety cents, his part of a note I hold on B. Hamilton, which he *129 assigned to me going to the Methodist Church, 6th April, 1869. (Signed,) . H. D. CARRIER.” The other receipt is in these words : “ Received of James Kirkpatrick, twenty-four dollars and eighteen cents, in full for his part of the Hamilton parsonage note, July 8th, 1867. (Signed,) H. D. CARRIER.” These two receipts are not releases, as they are not under-seal, neither are they covenants not to sue, for the same reason. So the defendants have both failed in establishing their plea of release and discharge. Russell v. Adderton et al., 64 N. C. Rep. 417. These receipts do not purport even to release the parties-to whom they were given; they are mere statements of the amount paid by Gilkey, and Kirkpatrick’s intestate ; the sum. paid by each being what was then estimated to be the aliquot part each of the solvent guarantors would have to pay to discharge the note. There is no promise not to sue the. parties to whom these receipts were given, and if such promise had been made in the receipts, they not being under seal,, would not have discharged the parties to whom they were given, as the promise would clearly have been without consideration, and therefore void. In this case, it will be remembered that the debt was over due at the time of the-payment, and that each one was liable not only to pay what he did, but also to pay the balance of the debt then due. Had the debt not then been due, the cas'e might have been, different; and if the plaintiff had accepted a horse estimated at so many dollars, though less than the sum due, in, discharge of the whole debt, then this acceptance of a horse- or of any other article of property, could have been pleaded as an accord and satisfaction. But it is well settled in our State, that the payment in money of a sum less than the, amount then due, although receipts are in the language *130 aged in these receipts, does not discharge the parties to whom they are given, nor the other guarantors, but all are still liable to pay the balance due on the note. This is decisive tof the case against Jones. Kirkpatrick did not appeal. The judgment against Jones is affirmed, with costs. This will be certified. Per Curiam. Judgment affirmed.