
    PAROL TESTIMONY AS TO SEPARATE AGREEMENT.
    [Circuit Court of Hamilton County.]
    George A. Fitch v. A. R. Gottschalk.
    Decided, February 18, 1905.
    
      Evidence — Written Agreement Acknowledging Full Settlement of Claim — Separate Agreement Embodying a Condition not Admissible.
    
    A writing which, acknowledges payment in part with cash-and the remainder with notes “in full settlement of claim,” is evidence of •the extinguishment of the debt, and not a mere receipt; and testimony as to .a separate agreement, whereby the creditor was to have the right in the event the notes were not paid to surrender them and proceed on his original claim, is not admissible.
    Giffen, J.; Jelke, P. J., and Swing, J., concur.
   This action was commenced to recover upon an amount for groceries furnished in the sum of $91.70. The defense was that the plaintiff accepted and received in full satisfaction and discharge of the cause of action the sum of ten dollars in cash and defendant’s five certain promissory notes1 for $10 each, made payable to the order of the plaintiff. Plaintiff, by reply, alleged that the notes were taken in settlement upon condition only that they were paid when due, and averred that they were not so paid, and that he tendered the notes back.

The defense of full settlement of the claim is based upon the following written instrument:

“Cincinnati, 0:, April 2, 1903.

“Received of Chas. L. Hopping, attorney for George A. Fitch, fourteen and fifty one-hundredths dollars ($14.50) in cash, $10.00 to be applied on account, and $4.50 to meet payment of costs, and five notes, dated April 2, 1903, each for $10.00, and payable in one, two, three, four and five months after date, in full settlement of claim of A. R. Gottschalk, grocer, against the said George A. Fitch, in accordance with agreement of A. R. Gottschalk, and a further agreement to immediately release attachment, dismiss- suit pending before Chas. T. Dumont, J. P., and payment of all costs of said suit.

“(Signed) John Wentzel,

“Attorney for A. R. Gottschalk.”

The court received over the objection of the defendant testimony tending to prove that at the time -said settlement was made, before said paper writing was given, there was a separate agreement with A. R. Gottschalk referred to in writing by which it was agreed and understood that if such notes were not paid when due, the plaintiff should have the right on his original claim to enforce the same by action. That such first note was not paid when due, and that plaintiff had offered to return said note; to all of which the defendant excepted.

The paper referred to is something more than a mere receipt; it shows that the parties agreed upon a settlement of the account, and that in fulfillment of that settlement the defendant paid to the plaintiff $14.50, and delivered to him five notes of $10 each. This was an extinguishment of the original account, and the cash and notes were accepted- — in the language of the parties — “in full settlement.”

It is contended, however, that the clause “in accordance with agreement of A. R. Gottschalk” permitted the plaintiff to show that the notes were accepted upon condition that they would be paid when due. If the payment of the cash and delivery of the notes was settlement in full, there could be no condition attached thereto, and any testimony tending to prove such condition would contradict the plain terms of the instrument itself. The natural construction of the clause is that the receipt of the cash and notes in full settlement was in accordance with an agreement already made by the attorney’s principal. This conclusion is supported by the case of Jackson v. Ely, Executor, 57 O. S., 450, in which the first proposition of the syllabus is as follows:

“A written instrument in the following terms, ‘$15.50. Wooster, Ohio, May 13, 1890. This is to certify that I have this day settled with J-ohn Ely, and he has paid me all he owed me, up to this date, and I have no claims or demands against him of any kind whatsoever. — Mrs. Wm. Jackson,’ is not a mere receipt, but contains an agreement to the effect that the parties have come to a settlement of all the accounts then existing between them, and agreed upon the balance due from one to the other; its terms clearly import that all matters of account existing between the parties at the time were included in the settlement; and as parol evidence ivhich tends to prove that certain matters of account, then existing, were not included in such settlement, would contradict the writing in this respect, it is not admissible.”

Charles L. Hoppiig, for plaintiff in error.

John Wentzel, for defendant in error.

We are of opinion, therefore, that the court erred in receiving testimony objected to, and that the answer stated a complete defense to the cause of action stated in the petition.

Judgment reversed and cause remanded for new trial.  