
    Philip Thorman, Resp’t, v. Julius Polya, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed November 7, 1892.)
    
    ACCOBD AND SATISFACTION—NOVATION.
    The acceptance by A. of a promissory note made and delivered by B. in exchange for receipted bills due from one 0. to A. is only presumptively a discharge of O.’s debt, and the presumption is open to rebuttal by paroi evidence of a contrary intention.
    Appeal from a judgment for plaintiff recovered in the district, court in the city of New York for the eleventh judicial district. Action to recover for work, labor and services rendered and materials furnished at defendant’s request, the. defense being that defendant was discharged from his indebtedness to plaintiff by an agreement of “accord and satisfaction” by “novation” of parties.
    
      W. M Watson, for resp’t; Wager & Acker, for app’lt.
   Bischoff, J.

On a former appeal herein we were constrained to reverse a judgment for plaintiff because of the erroneous exclusion on the trial of evidence offered in support of the defense. Thorman v. Polya, 37 St. Rep., 257.

On the retrial the facts remaining uncontroverted were that defendant owed plaintiff $107 for services rendered and materials furnished at his request; that one Weyman owed defendant a larger amount; that Weyman made and delivered his promissory note to plaintiff for the amount of the latter’s demand against defendant, and that in. exchange plaintiff delivered his receipted bills for defendant’s debt to Weyman. Plaintiff testified that at the time of the delivery of the receipted bills it was agreed between him and Weyman that he should procure Weyman’s note to be discounted and apply the proceeds of the discount in payment of his demand against defendant; that-induced by Weyman’s representations tó believe that it could be readily procured, he anticipated the discount of the note by delivery of the receipted bills; but that having ascertained that the discount could, not be readily obtained he tendered Weyman return of his note. If his version of the transaction be true, plaintiff did not accept Weyman’s note in payment; there was no agreement of “ accord and satisfaction ” by “ npvation ” of parties, and defendant’s indebtedness to plaintiff was not discharged. Thorman v. Polya, supra.

Plaintiff’s acceptance of Weyman’s note in exchange for the receipted bills was only presumptively a discharge of defendant’s debt, Noel v. Murray, 13 N. Y., 167; Shaw v. The Republic Life Ins. Co., 69 id., 286, and the presumption was open to rebuttal by evidence of a contrary intention. Tobey v. Barber, 5 Johns., 68 Johnson v. Weed et al., 9 Johns., 310. Nor was plaintiff precluded from disproving the presumption by parpl evidence because of his written acknowledgment of payment of defendant’s indebtedness to him.

The rule which precludes the introduction of paroi evidence to alter, add to or contradict a written instrument applies to contracts. A mere receipt, however, is always open to’ explanation by parol. Southwick v. Hayden, 7 Cow., 334; McCrea v. Purmort, 16 Wend., 460; Murray v. Gouverneur, 2 Johns. Cases, 438; House v. Low, 2 Johns., 378; Ensign v. Webster, 1 Johns. Cases, 145; Putnam v. Lewis, 8 Johns., 389; Davis v. Allen, 3 N. Y., 168.

To substantiate his defense that the note was accepted in payment, defendant called Weyman, who testified 'in substance that «plaintiff agreed to accept his note in discharge of defendant’s debt, and refuted plaintiff’s version of the . purport of its delivery to him. Weyman’s credibility, however, was directly impeached by proof of his ill-repute for truth and veracity, and it was competent, therefore, for the trial justice to reject his testimony. Defendant himself sought to contradict plaintiff by asserting that in an interview with him plaintiff agreed to accept Wey man’s note in payment Defendant's testimony, however, was that of a party in interest, and so subject to discredit without direct impeachment. Elwood v. Western U. Tel. Co., 45 N. Y., 549; Gildersleeve v. Landon, 73 id., 609; Kavanagh v. Wilson, 70 id., 177. At most the testimony presented a mere conflict of evidence, upon which the trial j ustice was required to determine the facts. We are unable to say that he erred in believing plaintiff as against the testimony for the defense, and as the trial justice had the advantage of personally observing the witnesses while under examination, we should submit to his determination of the credibility of their testimony. Baird v. Mayor, etc., 96 N. Y., 567.

There is still another ground upon which the judgment appealed from should be affirmed. It sufficiently appeared in evidence that, at the time of the delivery of his note, Wey man knew himself to be insolvent, and unable to meet it at maturity, but of which plaintiff was ignorant. The attempt, therefore, to foist his worthless note upon plaintiff was in furtherance of an evident design to perpetrate a fraud, upon the discovery of which plaintiff was justified in repudiating any agreement to receive the note in satisfaction of his demand against defendant, and was thereby restored to his original rights as defendant’s creditor, and assuming defendant to have been ignorant at the time of Weyman’s insolvency, it will not be presumed that plaintiff intended to accept an insolvent person in the place of his original debtor in the absence of convincing evidence to that effect Roberts v. Fisher, 43 N. Y., 159.

Judgment appealed from is affirmed, with costs.

Pryor, J., concurs.  