Mills v. Geron

22 Ala. 669

• Court: Supreme Court of Alabama
• Decided: January 15, 1853
• Status: Published

Opinion

GIBBONSj J-

We do not think that the question presented falls within the rule invoked by the plaintiff in error for its government. The due bill, and the contract here sought to be recovered upon, are entirely consistent with each other. They can both stand, without impugning the one upon the other; neither are they repugnant. The contract here sued upon seems to be entirely outside of the due bill, and in no way connected with it, except that the due bill was given for a balance still remaining due on the note, while the contract on which the suit is brought grew out of the payment of certain bank bills, in extinguishment of another portion of the same note for the extinguishment of which the due bill was given. We know of no principle of law which prevents a party from making as many contracts as he pleases, in relation to the payment of any particular note that he may hold. It is true, when two parties account together, and one passes a due bill to the other for a balance found, the legal presumption is, that this balance is the true one between them; but this presumption may be rebutted by proof, and it is entirely competent for either to show, by proof, that the balance so found was struck upon a partial, and not a general accounting between them. After such settlement, either one may sue upon and enforce a contract outside of tbe settlement, on showing that it was not a part of or included in it.

Let tbe judgment of tbe court below be affirmed.