PHILLIPS V. GOOCH, 1923-NMSC-012, 28
N.M. 448, 214 P. 582 (S. Ct. 1923)
SUPREME COURT OF NEW MEXICO
1923-NMSC-012, 28 N.M. 448, 214 P. 582
Appeal from District Court, Bernalillo
County; Hickey, Judge.
Action by B. T. Phillips against Horace Gooch and
others. From a judgment for defendants, plaintiff appeals.
Under a general plea of payment, evidence of a payment in
property other than money is admissible.
Thos. J. Mabry, of Albuquerque, for
appellant.
F. O. Westerfield, of Albuquerque, for
appellees.
Parker, C. J. Bratton and Botts, JJ.,
concur.
{*449} OPINION OF THE
COURT
{1} The appellees brought an
action to recover the amount due for goods sold and delivered to the appellant.
The appellant filed an amended answer to the complaint, alleging that he had
fully paid for the said goods, and that there was nothing due the appellees. At
the trial appellant sought to prove, under his plea of payment, that he had
paid a portion of the amount due in cash, and the remaining portion of the
purchase price with items of merchandise which were accepted by the appellees
in full satisfaction of such remainder. This offer to show payment by the
delivery and acceptance of the merchandise was refused by the court, and
judgment was awarded against the appellant, from which this appeal is taken.
{2} The court took the narrow
view that a plea of payment authorizes proof of payment in money only, and
there is authority to that effect. But the more modern and better doctrine is
that the plea of payment authorizes proof of payment either in money or in any
other manner agreed to by the parties. Thus, in 16 Encyc. Pl. & Pr. 207, is
said:
"The weight of modern authority does not confine
the evidence under the plea of payment to money payments alone, the general
rule seeming to favor the reception of evidence of anything tendered by the obligor
and received by the obligee in satisfaction and discharge of the debt."
{3} Many cases are cited
under this text, most of which we have examined and find that they support the
statement there made. In 1 Suth. Code Pleading, 529, it is said:
{*450} "In
pleading payment, it is not necessary that the answer should describe the
particulars of the transaction relied on as constituting payment. Under the
averment that the demand has been paid, it is competent to prove how it has
been paid, whether in cash or otherwise."
{4} See, also, to this
effect, Bank v. Sherman, 33 N. Y. 69; McGlaughlon v. Webster, 141 N. Y. 76, 35
N. E. 1081; Whitman v. Foley, 125 N. Y. 651, 26 N. E. 725; Swett v. Southworth,
125 Mass. 417; Edmunds v. Black, 13 Wash. 490, 43 Pac. 330; 2 Abbott's Forms of
Pleading, § 1878; Columbia Digger Co. v. Rector (D. C.) 215 Fed. 618; Uvalde
Asphalt P. Co. v. National Trading Co., 135 App. Div. 391, 120 N. Y. Supp. 11,
15; Rio Grande S. R. Co. v. Colorado F. & I. Co., 41 Colo 3, 91 Pac. 1114.
{5} Counsel for appellees has
cited several cases to the effect that payment in property other than money,
and acceptance thereof, is really an accord and satisfaction, and was a
payment. It is true that payment in property by agreement between the parties resembles
accord and satisfaction, and this fact is what has led to the divergence of
opinion in the cases. But we see no reason to give the word "paynent"
anything but its ordinary meaning, which is the equivalent of satisfaction of a
demand, and this definition of the word is borne out by the trend of modern
authority. See Clay v. Lakenan, 101 Mo. App. 563, 74 S. W. 391; Blair v.
Harris, 75 Mich. 167, 42 N. W. 790; Weir v. Hudnut, 115 Ind. 525, 18 N. E. 24
{6} During the trial, when
the offer of the proof was made by the appellant, counsel for appellees stated
that he would be surprised by such a showing, for the reason that he was
assuming that the plea would permit of the showing of payment in money only.
His remedy when the plea came in was to move for a bill of particulars, if his
clients were at all doubtful as to how the appellant claimed payment to have
been made.
{*451} {7} It follows from all of the foregoing that there
was error in the judgment, and that it should be reversed, and the cause remanded,
with directions to award a new trial, and it is so ordered.