
    Christian Mosel, Appellant, v. The William H. Frank Brewing Company, Respondent.
    
      Payment—parol evidence in explanation of a receipt—the question whether notes were taken in absolute payment is one for the jury.
    
    In an action brought by the assignee of Bettina Hammersen to recover a balance alleged to be due upon the purchase price of a chattel mortgage it appeared that Jacob Seibert had given the mortgage in question to Bettina Hammersen, and that she, through her husband, had sold it to tlie defendant at the price, as claimed by him (the husband), of §500, while the defendant asserted that the price was §350, and that for it Bettina Hammersen had accepted in absolute payment two promissory notes of a third party.
    Upon the question of payment the defendant put in evidence the following instrument: “Received at date from the Wm. H. Frank Brewing Company three hundred and fifty dollars ($350.00), in consideration of which payment and sum we hereby release and discharge said company from all claims'and demands in the chattel mortgage made by Jacob Seibert to Bettina Hammersen. “Dated Evergreen, Queens Co., N. Y. “BETTINA HAMMERSEN, “Jan. Slsi, 1895. “by August Hammersen. “§350.00.”
    The court held that this instrument showed conclusively that the notes of the third party, which were given at the time of the execution of the instrument to - August Hammersen for his wife by the William H. Frank Brewing Company, as representing the §350 mentioned in the instrument, were received by August Hammersen as an absolute payment, instead of being received, as he contended upon the trial, only to be retained as a payment in the event that he could get the notes discounted, which he was unable to do.
    
      Held, that the ruling was erroneous;
    That if the instrument was to be regarded as a receipt, it could be contradicted or explained by paroi evidence;
    That if the instrument was to be deemed both a receipt and a contract, paroi evidence was competent so far as the instrument was an acknowledgment of payment;
    That, the plaintiff was entitled to have the jury consider the testimony given on his behalf tending to show that there had been in fact no payment, although the receipt recited a payment, and also the evidence bearing upon the question in regard to the amount of the purchase price.
    Appeal by the plaintiff, Christian Mosel, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 22d day of - October, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Queens County Circuit.
    
      
      Bernwrd J. Isecke, for the-appellant,
    . M. Hallheimer, for the respondent.
   __Willard Bartlett,.J. :

This litigation grows out of the sale of a chattel mortgage. The defendant purchased this mortgage from' Mrs. Bettina Hammersen through August Hammersen, her husband. According to his account of the transaction, the purchase price was $500, of which $325 still remains unpaid. According to the account given by the witnesses 'for the defendant, the purchase price was $350, for the whole of which Mrs. Hammersen accepted in payment two promissory'notes aggregating that amount, which were made by the Fred Hower Brewing Company. Mrs. Hammersen assigned her claim to the plaintiff, who brought this suit to recover the balance of $325 .alleged to be due thereon.

There was a conflict in the evidence on two issues: First, as to whether the mortgage was sold for $500- or $350; and, second, as to whether the purchase price, whatever it was, had been paid by the.transfer and acceptance of the notes already mentioned. At the - ■conclusion of the case, however, the learned trial judge directed the jury to find a verdict for the defendant, holding that the testimony .showed that the notes had been received in payment for the mortgage, and also that a receipt or agreement which the defendant had put in evidence operated conclusively to relieve the defendant from - liability. The exception taken by plaintiff’s counsel to this direction •presents the only question which it is necessary to consider on this appeal.

The written instrument to which the court gave this conclusive ■effect was in the following terms:

“Received at date from the Wm.' H. Frank Brewing Company -three hundred and fifty dollars ($350.00) in consideration of which payment and sum we-hereby release and discharge said company from sail claims and demands in the chattel mortgage made by. Jacob Seibert to Bettina Hammersen.
“ Dated Evergreen, Queens Co., N. Y.
“Jan. 31, 1895. (Signed)
“$350.00 BETTINA HAMMERSEN.
“By August Hammersen.
'« AUGUST HAMMERSEN.”

There was no claim on the part of the defendant that the mortgage was paid for in money, but this paper was offered as-evidence that ther notes of the Fred Hower Brewing Company which represented $350 and were turned over to Mr. Hammersen had been taken by him as absolute payment, instead of being received, as he contended, only to be retained as payment in the event that he could get them discounted, which he was unable to do.

But the proof was not limited to this instrument alone. Testimony was given on both sides as to what was said at the time it was signed. So far as it purported to be a receipt, it was competent for the plaintiff thus to attack it. A receipt may be contradicted or explained by paroi evidence. It is only prima facie proof of the facts stated in it. (Ryan v. Ward, 48 N. Y. 204.) If the same instrument contain both a receipt and a contract, paroi evidence may be received to controvert or explain it, so far as it is an acknowledgment of payment, but ordinarily no further. This rule was recognized, apparently, in taking the proof upon the trial under review; but at the close of the evidence it seems to us the court erred in refusing to give any effect whatever to the paroi evidence introduced by the plaintiff, which tended to show that there had been no payment, although the receipt recited one.

That evidence certainly was sufficient to raise an issue of fact which should not have been taken away from the jury. The instrument did not conclusively establish the defense of payment, and it was. for the jury to say what weight should be given to it in support of that defense. There was also a conflict of evidence as to the amount of the agreed purchase price. Both these issues of fact required the submission'of the case to the jury. It was, therefore, error to direct a verdict, and the judgment must be reversed and a new trial granted. . . ■

All concurred.

Judgment reversed and new trial granted, costs to abide the event.  