COURT OF APPEALS.

#### William Buswell, appellant, agt. Horace J. Poineer, respondent.

*Parol evidence*is admissible to contradict or explain a *receipt of payment*given by a party for goods or property sold: Thus, “ received payment by note, three months,” and “ received payment of M. K. & Co.’s note, four months.”

Such receipts constitute no agreement between the parties that the notes mentioned therein, shall be taken as absolute payment, and therefore, being merely receipts, may be explained by parol evidence, by showing that the notes were not paid, and were valueless.

Where the only issue formed by the pleadings, is the fact of payment in the manner set up in the answer, the *affirmative*of such issue is upon the defendant.

*September Term,*1867.

The plaintiff, as the assignee of Buswell & Son, lumber merchants of Troy, brings this action to recover the amount of four several bills of lumber sold to the defendant, a resident of Newark, New Jersey, in the summerof 1856. The answer of the defendant admits the sale and delivery of the lumber to him, as stated in the complaint, but sets up as a defense that the defendant paid the said firm of Buswell & Son *448in full for each of said claims; that such payment was made by and with several promissory notes of the firm of Mann, Kendrick & Co.; and by them accepted in full payment and satisfaction of each of said claims, and of every part thereof. The only issue, therefore, formed by the pleadings was the fact of such payment in the manner set up in the answer.

S. Hand, *for appellant.*

W. A. Beach, *for respondent.*

Davies, Ch. J.

The affirmative of this issue was upon the defendant. He admitted the purchase by, and sale and delivery to him of the property of the plaintiff’s assignor, and he sought to discharge himself of his liabilities to pay for the same by setting up payment. To maintain his defense he put in proof four several receipts of the plaintiff’s assignor, attached to the said four bills of parcels, three of which were in these words: “ Received payment, by note, three months,” and the last, “received payment of M. K. & Co.’s note, four months.” It appeared in proof that the notes so given were those of the firm of Mann, Kendrick & Co. One of the firm of Mann, Kendrick & Co., which firm was located at and transacted business in Troy, testified on the trial that the defendant usually came to Troy and selected such lumber as he wanted; the bills were sent to us, we gave our notes, and charged the lumber to him; usually, the next time he came up he gave us his notes.

The plaintiff gave parol evidence to contradict that part of the receipt given by Buswell & Son, which states that the notes of Mann, Kendrick & Co. were received by Buswell *&*Son as payment. The defendant’s counsel objected to such evidence, and the court overruled the objection, and the de.fendant’s counsel excepted.

The court charged the jury that the said receipts might be explained by parol testimony, and to this part of the charge the defendant’s counsel also excepted. The defendant *449also excepted to that part of the charge which held and decided, that if the defendant offered paper which he knew, or had good reason to believe, was not good, and that Bus-well & Son did not know it, and they agreed to take it in absolute payment, their agreement would be avoided by the fraud, and the defendant would remain liable.

The jury found a verdict for the plaintiff, and judgment thereon was reversed at the general term, and a new trial ordered.

• The first question presented for consideration is, whether the rulings of the judge, in admitting parol evidence to explain the receipts, were correct. We think the authorities in this state, and the decisions of this court, leave no room for further question on this point. Without recurring to all the cases in the books on this subject, it will only be needful to call attention to a few of the most leading.

In *Tobey*agt. *Barber*(5 Johns, 68), a receipt had been given and indorsed on the counterpart of a lease for $163, “ and in full for the second and third quarters’ rent.”

The plaintiff offered to prove that the defendant had procured one Coffin to give a note, payable to the plaintiff, or order, for $115.68, at the bank of Columbia, in four months, and dated the same day as the receipt, and that it formed a part of the receipt; that .Coffin failed before it became due, and took the benefit, of the insolvent act; and that the note had not been paid. This evidence was objected to, and admitted. The judge charged the j my that a receipt was not conclusive evidence, but might be explained by parol. The court held that a receipt is an exception to the general rule, that a writing cannot ho ovnlained or contradicted by parol, citing *Ensign*agt. *Webster*(1 *Johns. Cases,*orir, , the parol evidence was. admissible. The court say: “The parol evidence was, then, admissible in this case, to show that the receipt of the 34th of September, 1803, though, purporting to be in. full for two quarters’ rent, was founded a note one Coffin to the plaintiff, by the *450procurement of the defendant; and that Coffin became insolvent before the note fell due, by which means the note, was not paid. The taking of the nóte was no extinguishment of the debt due for the rent. It is a rule well settled, and repeatedly recognized in this court, that taking a note either of a debtor or of a third person for a pre-existing debt is no payment, unless it be expressly agreed to take the note as payment, and to run the risk of its being paid.” The court in its opinion refers to the case of *Murray*agt. *Gouverneur and*Kemble, decided in the court of errors, in 1800 *(2 John, Ca.*438), where it was held that receipts were explainable, and that a bill was not a discharge of a precedent debt, unless by express agreement; and that a receipt of a bill *as cash*was not sufficient evidence that the bill was taken as an absolute payment. This case is cited with approval in *Egleston*agt. *Knickerbacker*(6 *Barb.*458); and in that case it was decided that the paper writing sought to be explained by parol evidence was the agreement between the parties, and not a receipt, and the head-note is: *“*Parol evidence is inadmissible to contradict or explain a written agreement.” This case was relied upon as the basis of *Coon*agt. *Knap*(4 *Seld.*402). There it was held that parol evidence was not admissible to explain a release, and that the paper offered in that case was not a simple receipt, which it was conceded could be explained or varied by parol evidence. The paper writing in that case was in efiect a release of the defendant' from all liability occasioned by that transaction. In *Filkins*agt. *Whyland*(24 *N. Y. R.*338), this court had occasion to consider the question whether a writing in this *form—“*F. bought - eT w --~-"uriSei':^l50 ;' received pay, W.”—given -upon the puichase of and payment *for*the horse, was a mere receipt, and held that the same was a mere receipt, and not a contract or bill of sale, so as to exclude parol evidence of a warranty of soundness of the horse by the vendor. Judge Wright, in his opinion in this case, says: “ The paper in this case is to be construed as a simple receipt, delivered and *451accepted as evidence of payment, and not the contract by which the title to the horse was transferred. . The paper cannot be read as a present agreement of sale. It contains no stipulations to sell or to buy, nor declares any present undertaking by either party. The vendor acknowledges payment, but he does not profess, by the writing, to sell. The vendee does not execute, but accepts it. ,It recites the fact of a past sale. It admits that a sale has been had, but does not affect one. A merchant’s bill of items of goods sold, made up and receipted in the same form, has never been regarded as the written contract of sale.” These observations, are pertinent to the case at bar, and conclusively show that the four paper writings relied upon by the defendant to sustain the defense set up in his answer, were neither releases, contracts of sale, or agreements, but simply receipts which, upon most abundant authority, could be explained by parol evidence. And the court properly overruled the objection to the admission of such evidence.. The exception to the charge of the judge that such receipts might be explained by parol testimony is equally untenable. The general term of the supreme court was incorrect in holding that there was error in those particulars, and reversing the judgment, and ordering a new trial. This would make it unnecessary to examine the exception taken to the judge’s charge in reference to the alleged fraud of the defendant, in transferring the notes of Mann, Kendrick & Co., knowing that the same' were not good, and would not be paid. The order granting a new trial should be reversed, and the judgment on the verdict should be affirmed, with costs.

All concur, except Grover and Parker, JJ. '

Judgment accordingly.