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receipt. The note had not become payable, but a receipt may operate upon existing claims and demands, although a present right of action upon them may not have accrued, while it would not operate as a bar to claims or demands not then existing.
" The note was not surrendered to the defendant, but the occasion of making the receipt may have been an adjustment of the note at a place where the plaintiff did not have the note.
“The case may lead us to suspect that the note has not been paid, but that is not sufficient-without any explanation or proof of other dealings between the parties to relieve the plaintiff from the effect, it may be, of his own imprudent conduct."
Upon the whole, it is a great advantage to one who pays money to obtain a receipt in full of all accounts or demands. But those who receive money sliould exercise great caution in giving one.
Payments to be accounted for. Another class of cases in which it is desirable that the receipt should state the intended application of the money paid, are those in which the money is received not in satisfaction of any debt, but as a loan or deposit; or to be used or paid out for the benefit of the party providing it.
The law presumes that when money is paid, it is paid in satisfaction of a debt, and is not intended as a deposit, or a loan, or an advance Therefore, where money is intended to be held in either of these three ways, it is not sufficient to take a common receipt for it. It is desirable to embody in the receipt an admission of the purpose for which it is received in some such way as this :
Received $ , to be repaid with interest.
For, otherwise, if one should lend money, taking only an ordinary receipt, and the borrower should refuse to repay it, it would not be sufficient in a suit to recover the amount for the lender to prove by his receipt that the borrower bad received the money. The court would immediately say: “The law presumes that you owed this man money, and that this was a payment of it;" and the case would be decided in favor of the borrower. To gain the case, the lender would have to be prepared with witnesses to prove that the money was a loan, and not a payment; when he might just as well have had an admission in the receipt.
The intention that money paid is to be repaid or accounted for, should be stated with clearness and accuracy. This clause in a receipt requires to be written with greater care than almost any other; for while it is a well-settled rule of law that an ordinary receipt is open to explanation, or even contradiction, it is equally well settled that a written rontract cannot be varied, and only to a limited extent explained by any evidence outside of the words themselves. , Now, the line of distinction between a receipt containing an admission that money is advanced to be employed in a certain way, and a contract that money which is advanced shall be employed in a certain way, is not very easy to draw. The two kinds of docuinents shade into each other by very imperceptible degrees; and it might very easily happen that persons should draw up a writing of this nature hurriedly, considering it only as a receipt, and supposing that it may be at any time explained, if there is any mistake, and yet, when finally there comes to be a controversy and the document is submitted to a judge, he might decide that it was a written contract, and would refuse to hear any evidence to alter the strict meaning of the words put down on paper.
Indeed this once actually happened under the following circumstances.* A dealer in agricultural produce named Querry, sold to a man named White, a number of articles of produce, among which were one hundred and thirty-one barrels of flour. He made out a bill of the articles, as dealers usually do, putting down opposite each article the price of it, and adding up all the sums at the foot of the column. They amounted to £131 2s. At the foot of the bill he wrote and signed the following receipt :
The above amount of the articles above mentioned, I have received of Thomas White, this 11th April, 1801.
Some time afterwards Querry sued White to recover more money for the hundred and thirty-one barrels of flour. He stated that at the time he sold the articles to White, they agreed, in conversation, that if flour should sell in New Orleans that year for seven dollars-and-a-half a barrel, or higher, then White should pay fifty dollars more than the sum mentioned in the receipt. He said that he only sold the goods to White on this express condition, and he had witnesses in readiness to prove the contract and the price of flour in New Orleans.
White objected that Querry ought not to be allowed to prove anything contradictory to his receipt. But the judge who tried the cause thinking that it was only a receipt, and might be explained, allowed him to prove what he asserted, and the case was decided in his favor.
But White appealed.
And the higher court decided that in such a case Querry could not be allowed to give evidence of the verbal agreement.
“ If," said the Court of Appeal, “the account had specified only the quantity of the articles of produce delivered, and had been wholly silent as to their prices, oral testimony might have been given if their value, or of the prices agreed on between the parties. But the account with the receipt annexed, furnished written evidence both of the quantity of articles furnished and of the prices agreed to be paid for them. To admit oral testimony going to show that White had agreed to pay a larger price, either conditionally or unconditionally, would be to contradict the written evidence of the contract between the parties. This is prohibited by the settled rules of law."
Whenever money is intrusted to a person upon his receipt, care should be taken to define distinctly and accurately the use which he is expected to make of it.
7. It is often desirable to mention the currency or medium in which the payment is made. If money be the medium, and there is no reason to doubt that it is good, nothing need be said about it. But it not unfrequently happens that payments are made in notes, drafts, checks, &c., and that these turn out to be bad. The question then arises whether
Qaerry vs. White, 1 Bibb's Reports, 271. It is true, that the receipt in this case was not one for money to be accounted for or repaid, but for a payment strictly so called. But it illustrates. Dotwithstanding, the principle that what is intended only as a receipt, may operate in law as a contract.
the party who took them in payment is not entitled to be paid over again.
Now, he is plainly not entitled to be paid over again, if it can be shown that when the note or other instrument was given to him he expressly agreed to take the risk of its being paid, and to receive it in full payment at all hazards.
On the other hand, he is clearly entitled to be paid a second time, if he can show that he only consented to receive the note upon the understanding that if it were not paid, he should return it to the debtor and renew his original claim.
But if it cannot be ascertained what was the understanding in this respect, it is then a question of law whether he ought to be paid again or not. The law on this point differs in different jurisdictions, though in most the rule prevails that in the absence of proof of an agreement to the contrary, a creditor is not paid by giving him the notes, checks, &c., of another person, unless these themselves are ultimately paid.
But all difficulty upon this subject will be saved if those who make or receive payments in such paper will state in the receipt what medium of paynient is employed, and define the understanding upon which it is received. If it is taken absolutely and at the payee's risk, let this understanding be expressed. If it be understood that if the note or check be dishonored the debtor is to make payment over again, let that be stated. True, this is not absolutely necessary where other evidence is at hand. When payment is made in a note of a third person, the creditor may, notwithstanding the admission in his receipt that he has received payment, prove that he never realized anything from the note, and that the agreement was such that he is entitled to be paid again. He may prove this if he has any evidence; if not, he must suffer the loss. It is far more convenient to preserve evidence of these facts in the receipt.
OF THE OCCASION FOR GIVING AND TAKING RECEIPTS. A man is not bound to give a receipt.
The custom of giving receipts is so universal, that one might suppose it was the legal duty of a creditor to give one when required, and that if the creditor refused to give a receipt, this would justify the debtor in refusing to make the payment. It is not so. The rule of law is, that a man shall not be compelled to furnish evidence against himself. To give a written admission of payment, is to furnish evidence against one's self, and no one can be required to do it.
If a creditor is so unreasonable as to refuse to give a receipt, it makes no difference in his legal right to receive the money due; and if the debtor wishes to secure evidence of the payment, the proper way is for him to make it in the presence of a witness. By universal custom and courtesy of business, every man gives receipts upon all ordinary occasions, when they are desired. They are to be asked for as matters of favor, however, not demanded as a right.
It is not best, as a general rule, to give a receipt when payment has not actually been made.
It is not very safe to do so, even when dealing with honest men; for even very honest men are sometimes surprisingly forgetful when the question is wbether they owe money or not. A man who finds a receipted bill among his papers, often thinks he recollects paying the money, when, in fact, he only forgets that he did not pay it. Then, in case of the death of one's debtor, those who should have charge of settling up his affairs would naturally suppose he had paid all bills which they found receipted, and would distrust the assertions of the creditors that the money was never paid.
There are some payments for which it is scarcely worth while to take receipts.
When payment is made by a check, drawn payable to the order of the creditor, he cannot obtain the money without indorsing the check. When, in course of time the check thus indorsed is returned to the drawer of it, it is equivalent in law to a receipt for the amount. There is this deficiency about it, that it does not state the intended application of the payment. When there is liable to be difficulty in respect to this point, a receipt should be taken.
Similarly, it is not usual to take a receipt on paying a note, draft, or other instrument indorsed by the payee. This is because the instrument itself, with the indorsement, becomes a receipt. Upon the same principle it is, that partial payments of such paper are indorsed on the instrument, instead of being receipted for. These indorsements constitute in effect a concise admission of payment, and only differ from a receipt in this, that they are not delivered to the payer. They do not become any part of the note or draft. They are considered as mere receipts; so that while the instrument cannot be contradicted by parol evidence, the indorsements can be.
It is not really safe to trust to a receipt when the transaction, in fact, involves an agreement.
At all events, the receipt in such a case should be drawn with great care; because, in case of any legal controversy, no explanation of it inconsistent with its language, can be given.
HOW LONG TO KEEP RECEIPTS. The length of time during which receipts should be kept depends upon a variety of circumstances.
In the first place, there are frequent cases, where it is perfectly safe to destroy receipts, because it is morally certain that the claim will never be revived. When the amount is very small, or the dealings have been definitely closed up, or the creditor's affairs, in consequence of his change of business, or removal, or death, have been finally settled-and in similar cases, it may often be unnecessary to preserve them. These are considerations, however, which can only be passed on by each individual for himself. The only general advice respecting them which we can give is contained in the remark, that a great many more men have incurred loss by losing or destroying receipts which they afterwards needed, than ever were seriously inconvenienced by keeping such as never proved to be useful.
The Statute of Limitations—which provides that after the lapse of certain intervals, actions shall not be brought to recover debts-has an important bearing upon this question. The statutes enacted in the different States differ somewhat, and the limitations prescribed are different for different kinds of claims. But, as a general rule, and in most of the United States, suits upon all those claims for which receipts are usually given, must be commenced within six years-unless there are special circumstances, such as are defined in the statutes, which excuse the delay. · As a general rule, therefore, after the lapse of six years from the time when the debt became due, the party need no longer take any especial care of bis receipt for the payment of it. From that time the Statute of Limitations will be his receipt.
JOURNAL OF MERCANTILE LAW.
THE VANDERBILT COMPANY-CHARTER-PARTY.* Nisi Prius Court, Liverpool, England, April 5, 1856. Before Mr. Justice Wilkes. Alexander rs. Dowie and another.
James Alexander, of Liverpool, merchant, was the plaintiff, and Mr. Kenneth Dowie and Mr. W. Forbes, also of Liverpool, commission-merchants, and agents of Vanderbilt's New York Accessory Transit Company, plying between San Juan and San Francisco, were the defendants; and the action was on a charter-party, under which the plaintiff undertook that his ship Ambassadress should procced from Cardiff to Nicaragua, or some other convenient port, with a cargo of coal for the defendants' steamers. The declaration stated that the vessel did proceed to San Juan del Suez, on the coast of Central America, and was ready there to deliver the coal, but that she was detained by the defendants seventy-three days ; and the action was brought to recover damages for the loss sustained by that detention. The defendants, in their first plea, denied the charter-party; in the second, they denied detention ; thirdly, they pleaded that the detention was caused by the plaintiff's own agent; and fourthly, that the full claim of the plaintiff had been met by the delivery of a bill of exchange for $4,617. Mr. James, Q. C., with whom was Mr. Quain, for the plaintiff'; Mr. Forsyth, Q. C., and Mr. Mellish for the defendants. Mr. JAMEs stated that the ship Ambassadress, then belonging to Mr. Alexander, but since purchased by Messrs. Fernie Brothers, sailed from Cardiff with a cargo of coal, on the 8th of July, 1852, the freight agreed upon being at the rate of 55s. per ton. The charter-party provided that on arriving at her destination, twenty-five days should be allowed for demurrage, over and above the time of discharging, such demurrage to be at the rate of £9 per ton daily ; and that the vessel was to be discharged with all convenient dispatch, on arriving at her destination, the plaintiff to be entitled to so much per day for the time the vessel was delayed after being ready and in turn to deliver her cargo. The Ambassadress arrived at San Juan del Suez on the 25th December, and by the direction of the charterer's agent there she proceeded to Salinas Bay, where she arrived on the 2d January, 1853, her arrival being immediately notified to Mr. Morton, the agent there of the Vanderbilt Company, for whose steamers Salinas Bay was used as a coaling depot. At that time there were in the bay two sailing vessels—the Damascus, belonging to Baltimore, and the Dumbarton. The Dum barton was unloading into one hulk, but there was another hulk doing nothing. These hulks were kept by the Vanderbilt Company for the reception of coal for their steamers. At the expiration of the twenty-five lay days, Capt. Pentreith, (captain and part owner of the Ambassadress,) wrote to Mr. Morton, notifying him of that fact, claiming demurrage to 22d February, and protesting against any unusual detention. In a few days afterwards the ships Blanchard and Boadicea arrived with coals about eight days afterwards ; and about a fortnight or three weeks afterwards the Sea King and St. Peter, with coal, arrived, and they were
We are indebted to the concise and reliable reports of the Liverpool Albion for this and several other interesting mercantile cases.