Mitchell v. Sanford

COLLIER, C. J. The case of De Sylva v. Henry, 3 Por. Rep. 132, we think is not distinguishable from the present. There the plaintiff paid to the defendant the sum of money, which was intended to be applied, as a partial payment of a note, which the latter had against him, but which was never thus applied ; afterwards, the defendant sued the plaintiff on the note, and recovered a judgment for the full amount. 697 The court said, that as to the sum paid on the note, it was clear that the plaintiff could not recover it back — “ he should have made this a part of the defence when sued on the note.” In Broughton v. McIntosh, 1 Ala. Rep. 103, it is decided, that if judgment is obtained for a debt of which a part has been paid, but the payment is not interposed as a defence, the part so paid cannot afterwards be recovered by suit, although the judgment is satisfied; that the payment is the extinguishment of the debt pro tanto, and should have been used as a defence to the action. In both cases it was said, that a payment bears no resemblance to a set off, and that the defendant cannot recover, it in a subsequent action, though he fails to plead or otherwise avail himself of it as a defence. It does not appear that it was attempted in these cases, any more than in the present, to set up the payments either by way of plea or evidence, and a contestation upon other points, if this were so, would make no material difference as to the rule of decision that should be applied. As soon as seventy-five dollars were handed by the plaintiff to the defendant, to be credited on the note, it was a payment pro tanto, and the note was thus far extinguished. The entry of a credit was not essential to consummate the payment, but could only have been required, in order that convenient and accessible proof of the fact might be furnished. The charge is unobjectionable, if, conceding the truth of all the evidence, and the inference fairly deducible from it, the plaintiff is not entitled to recover. That he was not entitled to a verdict will sufficiently appear from what we have said. The judgment is consequently affirmed.