Saunders v. Hendrix

ORMOND, J. The questions presented on the bill of exceptions for our consideration, are, 1. Whether the parol testimony offered in reference to the in-dorsement of payment on the note was properly received. The general doctrine in reference to a receipt, acknowledging the payment of money, is, that it is an admission, which although prima facie evidence against the party making it, is open to explanation by him, as that it was made by mistake or misrepresentation. In this case, it appears that either from accident or design, a writing on the back of one of the notes, was so unintelligible that it was impossible, with certainty, to say whether it was designed as a receipt for one hundred, or for a thousand dollars. The defendant below, who wrote the receipt, insisting that it acknowledged the payment of the latter sum, whilst the plaintiff maintained it was the former. If then, the receipt was so uncertain that it was impossible to say whether it was designed for the one sum or the other, it was void for uncertainty, and parol evidence was admissible to prove the payment actually made, so that in either aspect of the case, the parol evidence was properly admitted. [Ensign v. Webster, 1 Johns. C. 145; Mead v. Steger, 5 Porter, 498.] 2. The widow of Mayfield, one of the makers of the notes sued on, was a competent witness; if she had any interest in the matter it was against the party calling her, as the estate of her husband might be called on for contribution. There is no force in the objection that the entry abating the suit was not made at the time of the taking of her deposition. The suit was abated as to him, by his death, and the suggestion to the court is for the purpose of reviving it. 3. The deed offered by the defendant, made by the trasteé to him, reciting the payment of the consideration therein expressed, was not conclusive of that fact, even as against the trustee. Formerly, it appears to have been considered that the party was es-topped by his deed from showing that the consideration acknow [227] ledged in the body of the deed to have been received, was not in fact paid, but the law is now well settled to be otherwise, and that such an acknowledgment in the deed, is a mere receipt, and as much open to explanation, as if endorsed on the back of the deed. [Shepherd v. Little, 14 Johns. Rep. 210; Bowen v. Bell,20 ib. 338; Mead v. Steger, 5 Porter 498.] But in this case, although the actual receipt of the purchase money by the trustee would have been good against the plaintiff, as the former was acting by virtue of a power from the latter, and thereby created an agent for that purpose, it might well be questioned whether his acknowledgment of such payment, was evidence of that fact against the plaintiff, as he was a competent witness. He was in fact examined in the cause, and expressly swore that no part of the consideration was paid, but ten dollars. The charge of the court therefore, that the jury had nothing to do with the questions arising under the deed, was substantially correct. Let the judgment be affirmed.