Nelson v. Weeks

111 Mass. 223

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1872
• Status: Published

Opinion

By the Court.

The payment made in gold was legally a payment of the amount as cash, and must be estimated as such. Bush v. Baldrey, 11 Allen, 367.

There was no discharge given by the plaintiff under seal, and a payment upon a liquidated claim of a less sum than the amount due would not discharge the debt, though a receipt was given, expressed to be in full. Brooks v. White, 2 Met. 283. Donahue v. Woodbury, 6 Cush. 148. And paroi evidence, being generally admissible to control receipts and acknowledgments of consideration, was properly held to be admissible here.

The first instruction prayed for, so far as it was proper, was substantially covered by the words “ if he fairly settled and agreed to put an end to the contract” in the instructions given. The second instruction requested was rightly refused. The election to pay in gold having been made by the defendants, and not by the plaintiff, and no evidence being offered that the plaintiff ever expressly agreed to pay^the premium, mere acquiescence in the mode of payment would not amount to an accord and satisfaction.

Exceptions overruled.