43. Payment in Property 44. Taking Security 45. In General 46. Waiver of Money CONTRACTS DESIGNATING MEDIUM 47. Contract to Pay in Particular Money 48. Construction of Contracts to Pay in Particular Money 49. Judgment on Contract Payable in Particular Money 50. Contract to Pay in Confederate Money 51. Contract to Pay in Property 52. Duty of Debtor under Contract Giving Option as to Medium ** PAYMENT TO AGENT 53. In General 54. Sheriffs 55. Kind of Money Agent May Receive 56. Assumption of Debt by Agent COMMERCIAL PAPER 57. In General 58. Surrender of Negotiable Paper as Condition to Recovery on Original In debtedness CHECKS 59. View that Check of Debtor Is Not Payment 60. View that Check of Debtor Is Prima Facie Payment 61. Check of Third Person; Draft; Certificate of Deposit ་་་་་ ཟླ༥༨༤ 70. View that Negotiable Note Is Not Payment 71. Contemporaneous Debt 72. Agreement to Receive Note as Payment 73. Subsequent Acts of Creditor 74. Void or Worthless Paper 75. Renewal Notes 76. Collateral Rights of Creditor as Affected by Receiving Note 77. Lien of Creditor as Affected by Taking Note 78. Note of Joint Debtor 79. Note of Partner for Firm Debt Generally 80. Agreement to Release Other Partner 81. Note Given after Dissolution of Firm " 1 82. Note Given or Received by Agent or Public Officer 83. View that Negotiable Note Is Payment 84. Force of Presumption that Note Was Accepted as Payment 85. Evidence that Note Was Not Accepted as Payment 98. Application to Illegal or Unenforceable Demand Generally 100. Application in Part to Several Demands 101. Application as between Debts Due and Debts Not Due 108. Illegal or Unenforceable Claims 109. As between Different Items Generally 141. Payment by Debtor to Creditor 142. Possession by Debtor of Written Evidence of Debt 143. Debtor Having Access to Papers; Possession by Joint Obligor 145. Basis and Reason of Presumption. 146. Statute of Limitations Distinguished 149. Presumption as Merely Defensive 150. Debts Affected by Presumption 151. Debts within Statute of Limitations 152. Time Necessary to Raise Presumption 153. Lapse of Time for Less Period as Evidence 154. Application of Presumption to State 161. Financial Condition of Debtor 162. Demands; Nonresidence; Relationship of Parties 170. What Constitutes Involuntary Payment 171. Duress of Person or Property 174. Other Means of Relief Not Available 176. Payment to Avoid Legal Proceedings 177. Threats or Commencement of Civil Suit 178. Institution or Threat of Criminal Proceedings Generally 179. Criminal Proceedings against Spouse or Child 180. Payments to Prevent Discontinuance or Destruction of Business 181. Securing Immediate Enjoyment of Right 182. Excessive Charges by Common Carrier 183. Excessive Charges by Other Public Service Corporations; Protest 185. Seizure and Sale for Taxes 186. Regaining Possession of Goods Illegally Held 187. Money Paid on Judgment or Execution MISTAKE OF LAW 202. In General 203. Basis of Rule 204. Mistake of Law Defined 205-206. Payment by Municipality 207. Fees and Allowances Paid to Public Officers ILLEGALITY OF CONTRACT AND FAILURE OF CONSIDERATION 208. Money Paid on Illegal or Invalid Contract Generally 209. Parties Not in Pari Delicto 210. Failure of Consideration Generally 211. Money Paid for Worthless Paper or Unmarketable Title I. INTRODUCTORY 1. Definition and Distinctions.-"Payment" is not a word of technical legal meaning. It is well understood by the layman and, indeed, was brought into law proceedings from commercial life and not from the law treatises. It may well be defined as the performance of the consideration clause of a contract, or the satisfaction of a liability imposed by law. It implies a debt from him who pays to him who is to receive, and that when the payment is complete the debt will be discharged. Payment is not a contract; it is the discharge of a contract by the performance of its terms; while an accord and satisfaction is the substitution and execution of a new consideration for that originally agreed on, or an agreement as to the amount of an unliquidated liability and the payment thereof. A gift is the voluntary, gratuitous and absolute transfer of property from one person to another, while a payment is the transfer of property absolutely in the performance of an obligation. Whether money transferred is a payment or a gift is entirely a question of intention, but in the absence of controlling facts it will generally be presumed to be a payment. 2. Scope of Article.-An unlimited discussion at this place of the question of payment would encroach on the proper treatment of those subjects which deal with particular pecuniary obligations, and there 1. Dille v. White, 132 Ia. 327, 109 N. (N.S.) 111. W. 909, 10 L.R.A. (N.S.) 510. Note: 100 A. S. R. 393. 2. Porter v. Title Guaranty, etc., Co., 17 Idaho 364, 106 Pac. 299, 27 L.R.A. (N.S.) 111. Note: 100 A. S. R. 393. 3. Tennessee Bond Cases, 114 U. S. 663, 5 S. Ct. 974, 1098, 29 U. S. (L. ed.) 281. Note: 100 A. S. R. 393. 5. See ACCORD AND SATISFACTION, vol. 1, p. 176. 6. See GIFTS, vol. 12, p. 923. 7. Winchell v. Sanger, 73 Conn. 399, 47 Atl. 706, 66 L.R.A. 935. See infra, par. 141. 8. See such titles as BILLS AND NOTES, vol. 3, p. 1281 et seq.; JUDG4. Porter v. Title Guaranty, etc., Co., MENTS, vol. 15, p. 824 et seq.; MORT. 17 Idaho 364, 106 Pac. 299, 27 L.R.A._GAGES, vol. 19, p. 439 et seq. |