
    BUSWELL against POINEER.
    
      Court of Appeals ;
    
    
      September, 1867.
    Parol Evidence.—Explaining Receipt.
    Where the defendant in an action for goods sold, admits the sale and delivery alleged, but sets up payment made by transferring promissory notes accepted in satisfaction, the burden of proving payment in the manner alleged is upon the defendant.
    A receipt attached to a bill of parcels of goods sold, acknowledging that the seller has “ received payment by note,” may be contradicted by parol evidence showing that the note was not accepted in satisfaction of the demand for the price.
    Appeal from a judgment.
    This action was "brought "by William Buswell against Horace J. Poineer, to recover the price of lumber sold to defendant under circumstances which are stated in the opinion.
    
      S. Hand, for the appellant.
    
      W. A. Beach, for the respondent.
   Davies, Ch. J.

The plaintiff, as the assignee of Bus-well & Son, lumber merchants of Troy, has brought this action to recover the amount of four several bills of lumber sold to the defendant, a resident of Newark, New Jersey, in the summer of 1856. The answer of the defendant admitted the sale and delivery of the lumber to him, as stated in the complaint, but set up as a defense that the defendant paid the said firm of Buswell & Son in full for each of said claims; that such payment was made by and with several promissory notes of the firm of Mann, Kendrick & Co. ; and by them accepted in full payment and satisfaction of each of said claims, and of every part thereof. The only issue, therefore, formed by the pleadings was the fact of such payment in the manner set up in the answer.

The affirmative of this issue was upon the defendant. He admitted the purchase by, and sale and delivery to him of the (property of the plaintiff’s assignor, and he sought to discharge himself of his liabilities to pay for the same by setting up payment. To maintain his defense he put in proof four several receipts of the plaintiff’s assignor, attached to the four bills of parcels, three of which were in the words : “Received payment, by note, 3 months,” and the last, “Received payment of M. K. & Co.’s note, 4 months.” It appeared in proof that the notes so given were of the firm of Mann, Kendrick & Co. One of the firm of Mann, Kendrick & Co., which firm was located at and transacted business in Troy, testified on the trial “that the defendant usually came to Troy and selected such lumber as he wanted ; the bills were sent to us, we gave our notes, and charged the lumber to him ; usually, the next time he came up he gave us his notes.”

The plaintiff gave parol evidence to contradict that part of the receipt given by Buswell & Son which states that the notes of Mann, Kendrick & Co. were received by Buswell & Son as payments. The defendant’s counsel objected to such evidence, and the court overruled the objections, and the defendant’s counsel excepted.

The court charged the jury that the receipts might be explained by parol testimony, and to this part of the charge the defendant’s counsel also excepted. The defendant also excepted to that part of the charge which held and decided, that if the defendant offered paper which he knew, or had good reason to believe, was not good, and that Buswell & Son did not know it, and they agreed to take it in absolute payment, their agreement would be avoided by the fraud, and the defendant would remain liable.

The jury found a verdict for the plaintiff, and judgment thereon was reversed at the general term, and a new trial ordered.

The first question presented for consideration is, whether the rulings of the judge, in admitting parol evidence to 'explain the receipts, were correct. We think the authorities in this State, and the decision of this court, leaves no room for further question on this point. Without recurring to all the cases in the books on this subject, it will only be needful to call attention to a few of the most leading.

•In Tobey v. Barber (5 Johns., 68), a receipt had been given and indorsed on the counterpart of a lease for $163, ‘ ‘ and in full for the second and third quarters’ rent.” The plaintiff offered-to prove that the defendant had procured one Coffin to give a note, payable to the plaintiff, or order, for $115.68, at the bank of Columbia, in four months, and dated the same day as the receipt, and that it formed a part of the receipts; that Coffin failed before it became due, and took the benefit of the insolvent act; and that the note had not been paid.. This evidence was objected to, and admitted. The judge charged .the jury that a receipt was not conclusive evidence, but might be explained by parol. The court held that a receipt is an exception to the general rule, that a writing cannot be explained or contradicted by parol, citing Ensign v. Webster (1 Johns. Cas., 145), and that the parol evidence was admissible. The court say: “The parol evidence was, then, admissible in this case, that the receipt of the 24th of September, 1803, though purporting to be- in full for two quarters’ rent, was founded partly on a note given by one Coffin to the plaintiff, by the procurement of the defendant ; and that Coffin became insolvent before the note fell due, by which means the note was not paid. The taking of the note was no extinguishment of the debt due for the rent. It is a rule well settled, and repeatedly recognized in this court, that taking a note either of a debtor or of a third person for a pre-existing debt is no payment, unless it be expressly agreed to take the note as payment, and to run the risk of its being paid.” The court in its opinion refers to the case of Murray -y. Gi-ouverneur, decided in the court of errors, in 1800, where it was held that receipts were explainable, and that a bill was not a dis • charge of a precedent debt, unless by express agreement; and that a receipt of a bill as cash was not sufficient evidence that the bill was taken as an absolute payment. This case is cited with approval in Egleston v. Knicker-backer (6 Barb., 458); and in that case it was decided that the paper writing sought to be explained by parol evidence was the agreement between the parties, and not a receipt, and the head-note is : “ Parol evidence is inacLmissable to contradict or explain a written agreement.” This case was relied upon as the basis of the decision of Coon v. Knap (4 Seld., 402). There it was held that parol evidence was not admissible to explain a release, and that the paper offered in that case was not a simple receipt, which it was conceded could be explained or varied by parol evidence. The paper writing in that case was in effect a release of the defendant from all liability occasioned by that transaction.

■In Filkins v. Why land (24 N. Y., 338), this court had occasion to consider the question whether a writing in this form—“F. Bought of W. one horse, $150, received payment, W.”—given upon the purchase of and payment for the horse, was a mere receipt, and held that the same was a mere receipt, and not a contract or bill of sale, so as to exclude parol evidence of a warranty of soundness of the horse by the vendor. Judge Weight, in his opinion in this case, says: “The paper in this case is to be construed as a simple receipt, delivered and accepted as evidence of payment, and not the contract by which the title to the horse was transferred. The paper cannot be read as a present agreement of sale. It contains no stipulations to sell or to buy, nor declares any present undertaking by either party. The vendor acknowledges payment, but he does not profess, by the writing, to sell. The vendee does not execute, but accepts it. It recites the fact of a past sale. It admits that a sale has been had, but does not effect one. A merchant’s bill of items of goods sold, made up and receipted in the same form, has never been regarded as the written contract of sale.”

These observations are pertinent to the case at bar, and conclusively show that the four paper writings relied upon by the defendant to sustain the defense set up in his answer, were neither releases, contracts of sale, or agreements, but simple receipts which, upon most abundant authority, could be explained by parol evidence. And the court properly overruled the objection to the admission of such evidence.

The exception to the charge of the judge that such receipts might be explained by parol testimony is equally untenable. The general term of the supreme court was incorrect in holding that there was error in those particulars, and reversing the judgment, and ordering a new trial. This makes it unnecessary to examine the exception taken to the judge’s charge in reference to the alleged fraud of the defendant, in transferring the notes of Mann, Kendrick & Co., knowing that the same were not good, and would not be paid.

The order granting a new trial should be reversed, and the judgment on the verdict should be affirmed, with costs.

All the judges concurred, except Grover and Parker, JJ.

Judgment accordingly.  