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.

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. McChesney, 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.13 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. 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, 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.

20

Notes: 82 Am. Dec. 104; 96 A. S. R. 79.

13. Printup v. Mitchell, 17 Ga. 558, 7 Minn. 368, 82 Am. Dec. 101 and 63 Am. Dec. 258; Davis v. Shreve, 3 note. 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.

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.

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

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.

J

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,

140. Shop Books; Proof as to Medium of Payment. The whole question of the use of books of account as evidence is fully treated in another article, and only the general rules applicable to the use of shop books to prove payment are stated at this place. It is usually held, in the absence of express statutory provision to the contrary, that the rule that books of account kept in the ordinary course of business are admissible in favor of the person keeping them has no application to cases of money loaned, or payments made, by the party whose books are offered. Where the parties have been in the habit of treating cash items, both on the debit and credit side of the account between them, as the proper subject of a book charge, the proof of the loan or advancement of the money on the one side, or payment on account of the same on the other, may be made by the production of the books to the same extent as in other cases, and whether there has been such a course of dealing between the parties is a question for the jury. It is, in some states, provided by statute that books of account containing charges for money paid, laid out, furnished, or lent shall be received and admitted as evidence. It is not competent to give evidence of the contents of a private book entry by a deceased person to prove payments when neither the book nor a copy of the entry is produced, nor the book verified." The defense of payment may be supported either by proof of a payment in money or by proof that some other thing was given and received in payment. And parol evidence is admissible to show that at the time of making a contract it was to be paid in current money at the date of maturity.9

XII. PRESUMPTIONS

In General

141. Payment by Debtor to Creditor.-Generally it is to be presumed that money transferred from one person to another is given and received in payment of a debt, where there is no evidence of the intention of the parties. 10 Thus in the absence of all explanatory

7. Bennett v. Bennett, 37 W. Va. 396, 16 S. E. 638, 38 A. S. R. 47.

8. Buddicum v. Kirk, 3 Cranch 293, 2 U. S. (L. ed.) 444; Nash v. Towne, 5 Wall. 689, 18 U. S. (L. ed.) 527; Morehouse v. Northrop, 33 Conn. 380, 89 Am. Dec. 211.

9. M'Minn v. Owen, 2 Dall. (Pa.) 173, 1 U. S. (L. ed.) 336.

10. Butler v. Triplett, 1 Dana (Ky.) 152, 25 Am. Dec. 136.

evidence, a father advancing money to his child, to whom he is at the same time in debt, shall be presumed to do so with a view to the discharge of the debt, if the sum advanced be sufficient; and that, even though it is a portion given in marriage.11 The general rule is that, in the absence of explanation, the presumption arising from the delivery of a check is that it was delivered in payment of a debt and not as a loan or gift but it may represent a loan or a gift, or money of the drawer, to be applied by the drawee to the use of the former as his agent or otherwise. And it is to be remembered that the presumption is one of fact, a mere rule of argument, proceeding from convenience, the common experience being that a check drawn on a bank of deposit is much more frequently a means of payment than otherwise; and the presumption is overcome by proof of circumstances from which it may fairly and reasonably be inferred that the transaction was in fact a loan.12

... 142. Possession by Debtor of Written Evidence of Debt.-Ordinarily the owner of a note, bond or other evidence of indebtedness retains it until it is paid. Hence when it is found in the possession of the maker, a presumption of payment arises, 13 and it is evidence of satisfaction by the debtor himself, because in the usual course of commercial transactions men pay no debts but their own.14 But this is a presumption of fact, not of law, and may therefore be rebutted.15 The rule has no application when it is the duty of the debtor to take possession of the note. Thus the doctrine does not apply to a case in which the debtor is the administrator of the creditor's estate; 16 and as between husband and wife the presumption cannot arise although the one did not have access to the papers of the other.17 A presumption of payment from possession by the obligor does not arise in the case of a negotiable instrument before due; but on the contrary, in such case it is a matter of legal presumption that the bill or note is unsatisfied, and that it was indorsed and placed in the hands of the maker for his accommodation.18

12. Leask v. Hoagland, 205 N. Y. 171, 98 N. E. 395, Ann. Cas. 1913D 1199 and note; Lewis v. England, 14 Wyo. 128, 82 Pac. 869, 2 L.R.A.(N.S.) 401.

13. Arnold v. Arnold, 124 Ala. 550, 27 So. 465, 82 A. S. R. 199; Cassem v. Heustis, 201 IH. 208, 66 N. E. 283, 94 A. S. R. 160; Callahan v. Louisville First Nat. Bank, 78 Ky. 604, 39 Am. Rep. 262; Richardson v. Cambridge, 2 Allen (Mass.) 118, 79 Am. Dec. 767; Erwin v. Shaffer, 9 Ohio St. 43, 72 Am. Dec. 613; Weakly v. Bell, 9 Watts

(Pa.) 273, 36 Am. Dec. 116; Clymer v. Groff, 220 Pa. St. 580, 69 Atl. 1119, 14 Ann. Cas. 256 and note. See BILLS AND NOTES, vol. 3, pp. 1286-1287.

14. Craig v. Craig, 3 Rawle (Pa.) 472, 24 Am. Dec. 390.

15. Clymer v. Groff, 220 Pa. St. 580, 69 Atl. 1119, 14 Ann. Cas. 256. 16. Arnold v. Arnold, 124 Ala. 550, 27 So. 465, 82 A. S. R. 199.

Note: 14 Ann. Cas. 258.

17. Clymer v. Groff, 220 Pa. St. 580, 69 Atl. 1119, 14 Ann. Cas. 256 and note.

18. McGee v. Prouty, 9 Metc. (Mass.) 547, 43 Am. Dec. 409; Erwin