Opinion
November, 1892.
W.M. Watson, for plaintiff (respondent).
Wager Acker, for defendant (appellant).
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, 13 N.Y.S. 823.
On the retrial, the facts remaining uncontroverted were that defendant owed plaintiff one hundred and seven dollars 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 to 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 "novation" 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. 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, 9 id. 310. Nor was plaintiff precluded from disproving the presumption by parol evidence, because of his written acknowledgment of payment of defendant's indebtedness to him. The rule which precludes the introduction of parol 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; M'Crea v. Purmort, 16 Wend. 460; Murray v. Gouverneur, 2 Johns. Cas. 438; House v. Low, 2 Johns. 378; Ensign v. Webster, 1 Johns. Cas. 145; Putnam v. Lewis, 8 Johns. 304; 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 Weyman'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; Kavanaugh v. Wilson, 70 id. 177. At most the testimony presented a mere conflict of evidence, upon which the trial justice 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 Weyman 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.
Judgment affirmed.