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, 18*73, 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 $8*7.84 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 complete bar to the action, or otherwise it is not good. He says, “ the debtor may plead payment, but in order to come within the statute, he must have paid all the money due on the record or judgment, so that the whole of such judgment must have been satisfied; and if it do not go to that extent, the plea will be bad.” 1 Chit. Pl., (16th Am. Ed.,) 512. We do not, however, understand this construction of the statute to preclude the defendant from the benefit of partial payments on the judgment, under the plea of payment. The plea must profess to answer the entire demand, and allege payment in full, in order to conform to the statute; but it does not follow that under that plea the defendant may not give in evidence partial payments, and thus reduce the amount sought to he recovered.

A plea of payment, ordinarily, and in most actions where it can be pleaded as a bar, may be pleaded to a particular part of the demand, and confess as to the residue, or the defendant may plead payment as to part, and some other defence as to the remainder, taking care always to specify to what particular part the plea of payment is intended to apply. And in actions of debt on simple contract, as well as indebitatus assumpsit, the plea of payment though pleaded generally, may be taken distributively, and the issue be found for the defendant as to the amount .proved to be paid, and as to the residue for the plaintiff, (Cousins vs. Paddon, 2 Cr. M. & R., 547,) or, according to *217 our practice, the result of such an inquiry may be expressed in a general verdict for the plaintiff for the amount found due after deducting all payments admitted or proved. But there are cases, and an action on a judgment is one of them, where the defendant cannot plead in bar payment of part of the amount claimed, and where the plea of payment cannot be considered and applied distributively, so as to entitle the defendant to a formal verdict on the record as to part of the demand; and yet, both reason and justice require that he should be allowed the benefit of all part payments, proved by him, in order to save him the necessity of applying to a Court of equity for relief.

In the case of Lord vs. Ferrand, 1 Dow. & L., 630, the defendant pleaded payment of the whole amount of the promissory note declared on, but proved payment of part only; and while the Court expressed a doubt whether the plea could be applied distributively, they said, at all events, the defendant was entitled to be allowed in reduction of damages, such amount as he had proved to have been paid. This, we think, is not only in accordance with justice, but with established practice, and it applies in a case like the present as well as in any other.

The second, third and fourth prayers of the plaintiffs were properly refused by the Court below, because they all sought to exclude the payment of the $50, notwithstanding it may have been received by the attorney as part payment on the judgment.

As to the question of jurisdiction upon which the plaintiffs were non prossed, we adhere to the conclusion announced in the opinion filed upon the first hearing. By the 28th sec. of the 4th Article of the Constitution, the Superior Court, the Court of Common Pleas, and the Baltimore City Court, are given concurrently all the jurisdiction which the Superior Court and the Court of Common Pleas had at the time of the adoption of the present Constitution, except in certain enumerated cases. At the *218 time of the adoption of this Constitution, the Superior Court was clothed with jurisdiction over all suits where the debt or damage claimed exceeded $1000; and the Court of Common Pleas had civil jurisdiction in all suits where the debt or damage claimed, exclusive of interest, exceeded $100, and did not exceed $1000. Jurisdiction in all matters of contract, where the debt or damage claimed does not exceed $100, belongs to the justices of the peace. In this apportionment of jurisdiction, the test whether either of the three Courts named in the City of Baltimore has jurisdiction in matters ex contractu, is the amount recovered, and -'not the sum laid or claimed. This has been repeatedly decided in respect to the jurisdiction of the Circuit Courts for the Counties, and those decisions apply here, and are conclusive of the present question. The Superior Court taking concurrently with the other two Courts named, the former jurisdiction of the Court of Common Pleas, the minimum limit of its jurisdiction must exceed $100; and if the amount recovered in an action ex contractu, exclusive of interest, does not exceed that amount, there is a want of jurisdiction to render a judgment. Ott vs. Dill, 7 Md., 251 ; Bushey vs. Culler, 26 Md., 534, 552 ; Cooper vs. Roche, 36 Md., 563 .

(Decided 25th March, 1879.)

The judgment appealed from will be reversed, and a new trial awarded.

Judgment reversed, and new trial awarded.