Fraser v. Hext

Court of Appeals of South Carolina

Fraser v. Hext

21 S.C. Eq. 250

DecidedNovember 15, 1848

StatusPublished

This text of 21 S.C. Eq. 250 (Fraser v. Hext) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fraser v. Hext, 21 S.C. Eq. 250 (S.C. Ct. App. 1848).

Pincite

Opinion

Dargan, Ch.

delivered the opinion of the Court.

As to the effect of a settlement, and of a receipt in full, as prima facie discharging the party indebted from any further liability to account, this Court fully concurs in the views expressed in the circuit decree. To the authorities there cited may be added the case of Murrel v. Murrel, adjudged since the trial of this case, (May Term, 1848.) It is to be hoped that this question may now be considered at rest.

There is one point, however, on which the circuit decree has not done full justice to the complainants. The parties were so intent on opening the settlement, that the question [258]*258was not discussed, or even brought to my notice, on the circuit trial. It is admitted that the note of L. P. Hext, executed on the settlement, and for which the receipt was taken, has not been paid. And the decree adjudging that 1-Iext is discharged from further liability to account, awards nothing to the complainants, but leaves them to their legal remedy upon the note. Though a settlement is yrima facie conclusive as to the amount due (as explained in the decree) a note given on the settlement is not payment or satisfaction, unless it is so agreed upon or understood by the parties. And unless such be the understanding, it is rather to be regarded as a memorandum or acknowledgment of the amount ascertained to be due : to be held by the creditor. In this case, it appears that it was understood by the parties, that the note of Hext to Mrs, Fraser was not satisfaction, for it was expressly stipulated that Mrs. Fraser was to have payment in other securilies, to wit: the note of R. C. Ashe. If Ashe’s note had been given in pursuance of the agreement, it would have been satisfaction.

The note of L. P. Hext, given to Mrs. Fraser for the amount found to be due on the settlement, is, then, not a satisfaction of the acknowledged indebtedness, and she is entitled to be remitted back to her original claim and remedy, which it does not appear that she has either expressly or implied? ly waived. The judgment of this Court is, that the circuit des-cree be so modified, that the said L. P. Hext, as administrator, be ordered and decreed to. pay to the complainants the sum of four hundred and fifty dollars, with interest from the 1st day of January, 1842. In alL other respects the circuit decree is affirmed, and on all other points the appeals are dis? missed.

The whole Court concurred,

Decree modified.

Free access — add to your briefcase to read the full text and ask questions with AI

Dargan, Ch.

delivered the opinion of the Court.

As to the effect of a settlement, and of a receipt in full, as prima facie discharging the party indebted from any further liability to account, this Court fully concurs in the views expressed in the circuit decree. To the authorities there cited may be added the case of Murrel v. Murrel, adjudged since the trial of this case, (May Term, 1848.) It is to be hoped that this question may now be considered at rest.

There is one point, however, on which the circuit decree has not done full justice to the complainants. The parties were so intent on opening the settlement, that the question [258]*258was not discussed, or even brought to my notice, on the circuit trial. It is admitted that the note of L. P. Hext, executed on the settlement, and for which the receipt was taken, has not been paid. And the decree adjudging that 1-Iext is discharged from further liability to account, awards nothing to the complainants, but leaves them to their legal remedy upon the note. Though a settlement is yrima facie conclusive as to the amount due (as explained in the decree) a note given on the settlement is not payment or satisfaction, unless it is so agreed upon or understood by the parties. And unless such be the understanding, it is rather to be regarded as a memorandum or acknowledgment of the amount ascertained to be due : to be held by the creditor. In this case, it appears that it was understood by the parties, that the note of Hext to Mrs, Fraser was not satisfaction, for it was expressly stipulated that Mrs. Fraser was to have payment in other securilies, to wit: the note of R. C. Ashe. If Ashe’s note had been given in pursuance of the agreement, it would have been satisfaction.

The note of L. P. Hext, given to Mrs. Fraser for the amount found to be due on the settlement, is, then, not a satisfaction of the acknowledged indebtedness, and she is entitled to be remitted back to her original claim and remedy, which it does not appear that she has either expressly or implied? ly waived. The judgment of this Court is, that the circuit des-cree be so modified, that the said L. P. Hext, as administrator, be ordered and decreed to. pay to the complainants the sum of four hundred and fifty dollars, with interest from the 1st day of January, 1842. In alL other respects the circuit decree is affirmed, and on all other points the appeals are dis? missed.

The whole Court concurred,

Decree modified.

Cite This Page — Counsel Stack

Bluebook (online)

21 S.C. Eq. 250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fraser-v-hext-scctapp-1848.