Wolf v. Foster

[118] The opinion of the court was delivered by Brewer, J.: Plaintiff in error as plaintiff below, brought his action on an account for goods sold. Defendant filed an answer alleging that before the commencement of the action he “had paid said plaintiff the full amount of said demand.” A reply was filed denying payment, and upon these pleadings the case went to trial. 1. Payment; pleading evidence. One ground of error is that, under the allegation in the answer of payment to the plaintiff, defendant was permitted to prove payment to an agent of the plaintiff, the one from whom he made the purchase of the goo’ds specified in the petition. We see no error in this. Payment to an agent is in legal effect payment to the principal. And it is enough to allege payment to the principal, without specifying the particular party or agent who received the money. 2. Receipt; oral evidence. A second alleged error is, that after it had apppeared in evidence that at the time of payment a receipt therefor was given, which was not produced, and whose loss or destruction was not so accounted for as to permit secondary evidence of its contents, the court permitted the defendant to give parol testimony as to the fact of payment. This was right. The receipt is good as an admission of payment, but it is only at best prima fade evidence, and susceptible of explanation or contradiction. The fact of payment can always be shown, independent of any admission by receipt or otherwise. 3.Repeating instructions. The third objection is, that the court refused certain instructions asked. In the general charge the court laid down the law substantially as asked, and was therefore un(jer no obligations to repeat it. It is true this addition or modification was made: “You are the exclusive judges of all the facts in the case, and you will carefully consider all the evidence submitted, giving such weight to the same as it is entitled to, taking into account all the surrounding circumstances, and thus determine where the preponder [119] anee lies, and decide accordingly;” but as this is a, correct statement of the law the plaintiff has no cause of complaint. We see no error in the record as presented. The question in 'the case was simply one of payment, one of fact for the determination of the jury, and not for the examination of this court. The judgment will be affirmed. All the Justices concurring.