Rohr v. Anderson

Alvey, J., delivered the opinion of the Court. In this case an opinion was delivered at the last term of this Court, but upon re-argument ordered, and further examination, we are brought to a conclusion different from that announced in the opinion heretofore filed. This is an action of debt, founded upon the record of a judgment recovered by the plaintiffs against the defend ²¹⁴ ant, in the Corporation Court of the city of Norfolk, in the State of Virginia. The judgment was for $109.69, with interest from the 10th of October, 18⁷³, and $10 costs.

To the declaration or short note the defendant pleaded that he had paid, satisfied, and discharged the judgment declared on. The trial of the case resulted in a verdict of $8⁷.84 for the plaintiffs, and upon motion of the defendant, a nonpros, of the action was entered, upon the ground that there was no jurisdiction in the Court to render a judgment on the verdict for .the amount found to be due, that amount being less than $100. It appears that the claim upon which the judgment in the Corporation Court was rendered, had been sent by the plaintiffs to an attorney in Norfolk for collection. After suit brought and judgment obtained, the judgment debtor paid the attorney $50, and the attorney gave a receipt for that sum, expressing it to be “in settlement” of the judgment recovered.

The attorney testifies that the receipt was intended to be in full settlement of the judgment. The plaintiffs-refused to accept the $50, and repudiate the act of the attorney in receiving that amount, even as part payment on the judgment. The defendant has refused to receive it back from the attorney, in whose hands it still remains. We entirely agree with the Court below, that there is no evidence furnished to establish the fact that the .judgment has been paid, satisfied, or in any manner discharged.

No principle of the law is better settled than that the payment of a smaller sum can never be pleaded in satisfaction or discharge of a greater one, unless some agreement, founded on a sufficient consideration, he shown for giving up the residue, or unless there be a release under seal. And there being no discharge of the judgment, the question is, how and for what purpose were the $50 paid by the defendant to the attorney in Norfolk? If that sum was paid as an entire satisfaction of the judg ²¹⁵ ment, and it was so understood and intended at the time as between the attorney and defendant, then there is an entire absence of evidence to show authority in the attorney, either express or implied, so to receive that sum. Maddux vs. Bevan, 39 Md., 485 .

Such authority is neither found in the letter of the plaintiffs to the attorney, of the 23rd of January, 1874, nor in that of January 25th, 1875, from the plaintiffs to the defendant. And the attorney having no authority so to receive the $50, the plaintiffs were not bound to accept it. Hough vs. May, 4 Ad. & El., 954; Curtis vs. Innerarity, 6 How., 146 . But, on the other hand, if the $50 were paid to the attorney as only part payment of the judgment, or if that sum was paid with the understanding that if the plaintiffs were not willing to accept it in full satisfaction, it should be taken as part payment only, then we think the payment would be good as part payment, and that the attorney, being clothed with power to collect, had authority by implication to receive the entire amount in several or different payments.

And we think this question ought to have been submitted to the jury, and, consequently, that there was error in the addition or modification appended by the Court to the plaintiffs’ first prayer, in omitting to require the jury to pass upon the question of the purpose and understanding with which the payment was made. But it is contended by the plaintiffs that if it be found that the $50 were paid only as part payment of the judgment, still the defendant is not at liberty to take the benefit of that partial payment under the plea of payment and satisfaction; and that, therefore, the Court below was in error in the modification attached to the plaintiffs’ first prayer. This objection is founded upon the Statute of 4 Anne, ch. 16, see. 12. By that statute, which is in force here, (Alex.

Brit. St., 661,) it is provided, that “where any action of debt shall be brought upon any single bill, or where action ²¹⁶ of debt, or scire facias, shall he brought upon any judgment, if the defendant hath paid the money due upon such bill or judgment, such payment shall and may be pleaded in bar of such action or suit,” etc. Of this provision of the statute, Mr. Chitty gives it as the settled construction, that inasmuch as a plea of payment in an action upon a record was not good at common law, because such payment was matter in pais, and not of record, the plea allowed by the statute must go to the whole amount due on the judgment, and form a