Neal v. Handley

Mr. Justice Sheldon delivered the opinion of the Court: There is a dispute between the parties as to what the terms of the settlement were upon which the receipt in question was given. Mrs. Burnett and her husband testify that appellee paid her $100 and a cow valued at $40, and that he agreed to pay all the costs and fees, if there were any, and stand in her shoes. On the other hand, appellee testifies that Mrs. Burnett said if he would give her $100 and the choice of his cows, she would sign the receipt; that nothing was said in regard to his paying costs or attorney’s fees; that he ivas to do nothing but pay the $100 and let her have the cow; that Mrs. Burnett had before asked him about his cows, which he told her were worth $40 to $60 each. He said afterwards that the price of the cows was fixed at $60. The witness York testified that he was at Mrs. Burnett’s house with appellee at the time the receipt was given; that he was called in, and appellee told him that he was to pay Mrs. Burnett $100 and choice of his cows, and she was to sign a receipt in full for the judgment, and she nodded her head and said “Yes; ” that that was all that was said in his presence; that he heard nothing said about appellee paying any costs or attorney fees, or standing in her shoes; that after this was said, Mrs. Burnett sat down to sign the receipt, and soon after he got up and went out. Julia A. Gilbert and James B. Handley, daughter and son of appellee, testified that they were at their father’s house when Mr. and Mrs. Burnett came for the cow; that Mrs. Burnett then said she had signed a full receipt for the judgment; that she had received the money, not saying how much, and was to have choice of appellee’s cows, and Mrs. Gilbert went with her to pick out the cow. Mrs. Gilbert stated, further, that Mrs. Burnett said she had paid her lawyer $25; that it was all settled now—she had got her money, and it was all settled. The uncontradicted testimony of two other disinterested witnesses was, that the value of the cow Mrs. Burnett got was $50, one of them saying he had tried to buy the cow of appellee; that he asked witness $75, and witness offered $50 for her. Appellant testified a fee of $50 ■was due to him from Mrs. Burnett, and $4.50 for costs paid. It thus appears there was direct contradiction between the parties themselves as to whether or not the $100 and cow were taken in full satisfaction of the judgment. The receipt itself says that it was in full of the judgment. This was the writing which was given and taken as the evidence that the judgment had been paid, and it is only to be overcome by a clear preponderance of evidence. (Winchester v. Grosvenor, 44 Ill. 426.) From an examination of the whole evidence, we are unable to say the court was not justified in finding that the $100 and cow were given and accepted in satisfaction of the judgment. But even if this were so, it is contended it would not be a discharge of the judgment, inasmuch as the $100 and the value of the cow were of a less amount than the judgment, and authorities are cited upon the point that the payment of a' less sum of money can not be pleaded in satisfaction of a larger sum. The doctrine of these authorities is confined to the case of the payment of, or agreement to pay, a less sum of money, merely, and does not apply to the case of the payment of a less sum of money and some other thing. The law in this respect is laid down in Pennel’s case, 3 Coke, 238, as follows: “And it was resolved by the whole court that payment of a lesser sum on the day, in satisfaction of a greater, can not be any satisfaction for the whole, because it appears to the judges that by no possibility a lesser sum can be a satisfaction to the plaintiff for a greater sum; but the gift of a horse, hawk, robe, etc., in satisfaction, is good, for it shall be intended that a horse, hawk, or robe, etc., might be more beneficial to the plaintiff than the money, in respect of some circumstances, or otherwise the plaintiff would not have accepted it in satisfaction.” And see 1 Smith’s Lead. Cas. 555, in Hare & Wallace's note to Cumber v. Wane. We can have no doubt, under the circumstances here, and so far as concerns the present case, that the receipt in evidence should be held to be a satisfaction of the judgment. It was given as such, accepted as such, and immediately delivered by appellee to the clerk of the court, and by him pasted in the judgment docket, showing the reliance of appellee upon the receipt as a satisfaction of the judgment. He was entitled to make such reliance, and to repose upon it and say the judgment was satisfied, until he had been distinctly notified of an intention not to stand to the receipt, and to enforce collection of the judgment, so that he might have governed his action accordingly. After such a notice he would have been put upon his guard against the judgment, and might not have'been exposed to the peril which he suffered in this case, of having, without knowledge on his part, $2400 worth of his property sacrificed for the payment of less than $100. The decree will be affirmed. Decree affirmed.