payment.20 In some jurisdictions evidence of want of consideration may be given under a plea of payment.1 A judgment of garnishment against the defendant cannot be given in evidence under a plea of payment. Such matter is special matter in avoidance, and not negativing the original indebtedness, and must therefore be specially pleaded. A check drawn to another's order, indorsed by him and paid, is presumptive evidence that its amount was paid to the payee on account of a debt shown to have existed at that time, and the check cannot be excluded on the ground that it belongs to a different transaction, until the presumption is overcome by proof. This is on the ground that the law presumes that money given to another to whom a debt is owing is given in payment of the debt rather than for some other purpose."

XI. EVIDENCE

134. Financial Ability.-Evidence of the financial condition of either the debtor or the creditor may, by reason of the circumstances, have some probative force on the question of the payment of an indebtedness, or it may be so remotely connected with that question as to be almost or entirely devoid of probative value. In the former instance the evidence would be admitted, in the latter rejected. The admissibility of the evidence is therefore to be determined in view of its bearing on the question under investigation, considering the circumstances surrounding the transaction and the relation of the parties, and not by any fixed rule. Experience is not sufficiently uniform to raise a presumption that one who has the means of paying a debt will actually pay it. Accordingly, it is held that the fact that a debtor has had such means is not admissible in the first instance as tending to show that the debt has been paid. Indeed the effect of the reputed wealth of a debtor and his supposed ability to pay whenever called on might have furnished the very reasons bearing on the creditor's mind to allow the obligation to remain uncollected. But if it is shown that the creditor was in pressing need of money, proof that at the time the debtor was in funds, to the knowledge of the creditor,

20. Watt v. Gans, 114 Ala. 264, 21 So. 1011, 62 A. S. R. 99.

1. Swift v. Hawkins, 1 Dall. (Pa.) 17, 1 U. S. (L. ed.) 18.

2. Walters v. Washington Ins. Co., 1 Ia. 404, 63 Am. Dec. 451.

3. Masser v. Bowen, 29 Pa. St. 128, 72 Am. Dec. 619.

4. Supreme Tribe, etc. v. Hall, 24 Ind. App. 316, 56 N. E. 780, 79 A. S. R. 262.

Note: 8 Ann. Cas. 780.

5. Xenia First Nat. Bank v. Stewart, 114 U. S. 224, 5 S. Ct. 845, 29 U. S. (L. ed.) 101; Atwood v. Scott, 99 Mass. 177, 96 Am. Dec. 728; Dick v. Marvin, 188 N. Y. 426, 81 N. E. 162, 11 Ann. Cas. 109; McDowell v. McDowell, 75 Vt. 401, 56 Atl. 98, 98 A. S. R. 831.

Note: 8 Ann. Cas. 780.

6. Dick v. Marvin, 188 N. Y. 426, 81 N. E. 162, 11 Ann. Cas. 109.

is admissible on the question of payment." And where evidence that the debtor did not have the means to pay has been given by the party controverting the plea of payment or where by crossexamination he has sought to establish the inability of the adverse party to pay, it then becomes permissible for the party who has set up the payment to sustain that defense by direct proof to the effect that he possessed the requisite means. The admissibility of such testimony where a question has been raised as to the pecuniary ability of the party pleading payment is clearly supported by every consideration of fairness and justice and appears to have the sanction of judicial authority wherever the question has been raised.8 Many authorities sustain the view that evidence of the ability of the debtor to have paid a debt sought to be collected is admissible, especially where the payment is claimed to have been made at a remote time and circumstantial evidence of that fact has to be relied on mainly. According to one view it is within the reasonable discretion of the trial court to admit evidence as to the financial standing and business habits of the debtor, as it has a bearing on the credibility of the creditor's testimony that he has not been paid; but the action of the trial court in excluding such evidence as being too remote will not be disturbed on appeal, in the absence of a showing of abuse of discretion.10

135. Financial Inability.-The fact that one has not had the means to make certain payments is evidence tending to show that he has not made them, and such evidence is held to be admissible.11 There is good authority supporting the rule that insolvency is no evidence of nonpayment, as it is common for both solvent and insolvent men to pay some of their debts and to leave some unpaid.12 Evidence that for a considerable period of time after the maturity of a debt the creditor was in financial difficulties which made the collection of the debt very desirable and necessary has been held competent as tending to show payment.18

136. Receipt.-A receipt in full of all demands is prima facie proof of a settlement between the parties, and of the payment of the balance; and it is not merely evidence of the sum specified in it.14

7. Coulter v. Goulding, 98 Minn. 68, 107 N. W. 823, 8 Ann. Cas. 778; McDowell v. McDowell, 75 Vt. 401, 56 Atl. 98, 98 A. S. R. 831.

8. Dick v. Marvin, 188 N. Y. 426, 81 N. E. 162, 11 Ann. Cas. 109 and note.

Note: 8 Ann. Cas. 780.

9. Note: 8 Ann. Cas. 780.

10. Coulter v. Goulding, 98 Minn. 68, 107 N. W. 823, 8 Ann. Cas. 778. 11. Atwood v. Scott, 99 Mass. 177,

96 Am. Dec. 728; Dick v. Marvin, 188 N. Y. 426, 81 N. E. 162, 11 Ann. Cas. 109.

Note: 8 Ann. Cas. 780.

12. Xenia First Nat. Bank v. Stewart, 114 U. S. 224, 5 S. Ct. 845, 29 U. S. (L. ed.) 101.

Note: 8 Ann. Cas. 780.

13. Note: 8 Ann. Cas. 780.

14. Reid v. Reid, 13 N. C. 247, 18 Am. Dec. 570.

Note: 72 A. S. R. 590.

To treat receipts merely as evidence of the payment of so much money as is acknowledged to have been received in them is to leave the party who has taken them to be called to account in the same manner as one who had taken a receipt for the same sums, expressly to apply on account, and is, in effect, to deprive the former of all benefit he has attempted to derive from a receipt in full.15 A receipt is not a contract and it may be explained and controlled in its operation by parol evidence.16 The receipt is open to proof that there was a mistake in stating the account, or in striking the balance; a mistake in telling the money; a mistake in the nature or value of the thing paid; and the like.17 It may be shown that it was given through mistake or fraud,18 or that it was not intended to release the particular demand sued on.19 So where a receipt in full for a claim was given by the agent, who was fully authorized, the principal is not precluded from giving evidence to show that the receipt was obtained by fraud, misrepresentation and imposition on the part of the debtor.20 The receipt, however, remains evidence of the facts stated in it until those facts be clearly disproved, and a mistake or fraud shown,1 and when executed with a knowledge of all the circumstances, and without mistake or surprise on one part, or fraud or imposition on the other, is a good defense to a claim. It has been held, however, that parol evidence, varying or contradicting a receipt, is admissible if the receipt contains general or vague expressions, but if it is definitely descriptive of what is intended to be affected by it, it cannot be assailed by parol testimony, except on the ground of fraud. A receipt is conclusive on the party giving it where the claims or accounts were in dispute, and a compromise was agreed. on, or where a receipt was given for unliquidated damages; and in

As to receipt in full as evidence of 101 A. S. R. 345; Chapel v. Clark, accord and satisfaction, see ACCORD 117 Mich. 638, 76 N. W. 62, 72 A. S. AND SATISFACTION, vol. 1, p. 186. R. 587. 15. Fuller v. Crittenden, 9 Conn. 401, 23 Am. Dec. 364.

16. Mills v. Dow, 133 U. S. 423, 10 S. Ct. 413, 33 U. S. (L. ed.) 717; Pribble v. Kent, 10 Ind. 325, 71 Am. Dec. 327; Henery v. Henery, 11 Ind. 236, 71 Am. Dec. 354; Stackpole v. Arnold, 11 Mass. 27, 6 Am. Dec. 150. 17. Fuller v. Crittenden, 9 Conn. 401, 23 Am. Dec. 364 and note; Stackpole v. Arnold, 11 Mass. 27, 6 Am. Dec. 150; Reid v. Reid, 13 N. C. 247, 18 Am. Dec. 570.

18. London F. Ins. Ass'n v. Wickham, 141 U. S. 564, 12 S. Ct. 84, 35 U. S. (L. ed.) 860; Illinois Cent. R. Co. v. Manion, 113 Ky. 7, 67 S. W. 40,

Note: 72 A. S. R. 590.

19. London F. Ins. Ass'n v. Wickham, 141 U. S. 564, 12 S. Ct. 84, 35 U. S. (L. ed.) 860; Tucker v. Baldwin, 13 Conn. 136, 33 Am. Dec. 384; Ryan v. Ward, 48 N. Y. 204, 8 Am. Rep. 539.

20. Trisler v. Williamson, 4 Har. & McH. (Md.) 219, 1 Am. Dec. 396.

1. Fuller v. Crittenden, 9 Conn. 401, 23 Am. Dec. 364; Reid v. Reid, 13 N. C. 247, 18 Am. Dec. 570.

2. Fuller v. Crittenden, 9 Conn. 401, 23 Am. Dec. 364 and note.

3. Raymond v. Roberts, 2 Aikens (Vt.) 204, 16 Am. Dec. 698.

such cases unless given in ignorance of its purport, or in circumstances constituting duress, is an acquittance in bar of any further demand. A bank check returned to the drawer after being paid and debited to his account with the indorsement of the payee is a voucher for such payment in favor of the drawer against the payee; but without such indorsement it is not evidence, as between drawer and payee, of such payment.5

8

137. Acknowledgment in Written Instrument of Receipt of Money. The acknowledgment in a deed of the receipt of the consideration money is prima facie evidence of its payment, and estops the grantor from alleging that the deed was executed without consideration. Such a recital is not conclusive; it may be explained or contradicted by other evidence, but until impeached, it is legal and competent evidence of payment.10 Nor is its operation confined to the immediate parties to the deed. It does not operate by way of estoppel, but as evidence merely, and must have the effect of sustaining the deed, by establishing, prima facie, the consideration for which it was given, against any person who may seek collaterally to impeach it.11 It is very common in conveying land to acknowledge the receipt of the purchase money in the body of the deed, and also in a separate receipt at the bottom, or on the back of it, though no money has been paid, but only secured to be paid by bond or otherwise. But whenever the grantee has attempted to avail himself of these receipts, the grantor has been permitted to show that the money was not paid.12

138. Receipt of Third Person.-As against strangers a receipt is not competent evidence of the payment thereby acknowledged, but is merely a hearsay declaration of the person who signed it, made without opportunity for his cross-examination, and independently of the

4. De Arnaud v. United States, 151 v. McChesney, 7 Cow. (N. Y.) 360, U. S. 483, 14 S. Ct. 374, 38 U. S. (L. 17 Am. Dec. 521 and note; Watson ed.) 244; Ryan v. Ward, 48 N. Y. 204, v. Blaine, 12 Serg. & R. (Pa.) 131, 8 Am. Rep. 539. 14 Am. Dec. 669.

5. Pickle v. Muse, 88 Tenn. 380, 12 S. W. 919, 17 A. S. R. 900, 7 L.R.A. 93.

6. Mills v. Dow, 133 U. S. 423, 10 S. Ct. 413, 33 U. S. (L. ed.) 717; Union Ins. Co. v. Grant, 68 Me. 229, 28 Am. Rep. 42; Jackson v. MeChesney, 7 Cow. (N. Y.) 360, 17 Am. Dec. 521 and note.

Note: 29 L.R.A. 740.

See also DEEDS, vol. 8, p. 968. 7. Union Ins. Co. v. Grant, 68 Me. 229, 28 Am. Rep. 42.

8. O'Neale v. Lodge, 3 Har. & McH. (Md.) 433, 1 Am. Dec. 377; Jackson

9. Mills v. Dow, 133 U. S. 423, 10 S. Ct. 413, 33 U. S. (L. ed.) 717; Union Ins. Co. v. Grant, 68 Me. 229, 28 Am. Rep. 42; Jackson v. McChesney, 7 Cow. (N. Y.) 360, 17 Am. Dec. 521 and note.

10. Jackson v. McChesney, 7 Cow. (N. Y.) 360, 17 Am. Dec. 521 and note; Wood v. Chapin, 13 N. Y. 509, 67 Am. Dec. 62 and note.

11. Jackson v. McChesney, 7 Cow. (N. Y.) 360, 17 Am. Dec. 521 and

note.

12. Watson v. Blaine, 12 Serg. & R. (Pa.) 131, 14 Am. Dec. 669.

sanction of his oath.18 Cases exist, however, where a receipt by a third person in connection with other facts may be competent evidence, as where the person to whom the payment is made is pointed out by law, as in case of a receiver of taxes; and so when the person to whom the payment is to be made is designated by the contract of the defendant, as in case of an order on the plaintiff in favor of such person.14 And it is held that legacies charged on land may be shown to have been paid, by receipts from the legatees or other written evidence to prove performance of a covenant to convey free of incumbrances, and a discharge by deed need not be produced. 15

139. Indorsements.-Indorsements on a written instrument are independent writings, and may be read in evidence only after proof made that they are signed by the party sought to be charged, or have received his assent in some binding form.16 The introduction of a note in evidence does not carry with it the indorsements on the back of it of money paid,17 but the holder of a note may give it in evidence, without offering the indorsements at all.18 An indorsement of a payment being an admission by the party making it that the payment was in fact made cannot be wholly nullified by a destruction or an obliteration thereof; though it be afterwards erased or obliterated, the admission is, nevertheless, evidence against the person making it, and is entitled to all the weight of evidence of that sort, until explained away or disproved by him.19 Still it may be shown that the indorsement was made by mistake and its effect overcome.2 The indorsement of a credit made by the obligee and signed by him within the period that raises a presumption of payment may be considered as a circumstance tending to rebut such presumption, because, when made, the indorsement was against his interest.1 Likewise it has been held that an indorsement on a note made by the obligee either before or after the note is barred is admissible on the question of payment under the statute of limitations.2

13. Printup v. Mitchell, 17 Ga. 558, 63 Am. Dec. 258; Davis v. Shreve, 3 Litt. (Ky.) 260, 14 Am. Dec. 66; Ellison v. Albright, 41 Neb. 93, 59 N. W. 703, 29 L.R.A. 737 and note; Clark v. Depew, 25 Pa. St. 509, 64 Am. Dec. 717; Lloyd v. Lynch, 28 Pa. St. 419, 70 Am. Dec. 137.

14. Hammond v. Hannin, 21 Mich. 374, 4 Am. Rep. 490; Lloyd v. Lynch, 28 Pa. St. 419, 70 Am. Dec. 137. Note: 29 L.R.A. 739.

7 Minn. 368, 82 Am. Dec. 101 and note.

Notes: 82 Am. Dec. 104; 96 A. S.

R. 79.

17. Turrell v. Morgan, 7 Minn. 368, 82 Am. Dec. 101 and note.

18. Note: 82 Am. Dec. 104. 19. Graves v. Moore, 7 T. B. Mon. (Ky.) 341, 18 Am. Dec. 181.

20. Le Clere v. Phillpott, 169 Ia. 555, 151 N. W. 852, Ann. Cas. 1917B

839.

1. Dabney v. Dabney, 2 Rob. (Va.)

15. Cassell v. Cooke, 8 Serg. & R. 622, 40 Am. Dec. 761. (Pa.) 268, 11 Am. Dec. 610.

16. Freeman v. Bass, 34 Ga. 355,

Note: 6 A. S. R. 811.

2. McDowell v. McDowell, 75 Vt. 89 Am. Dec. 255; Turrell v. Morgan, 401, 56 Atl. 98, 98 A. S. R. 831.