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not be pleaded in bar of the defendant's own obligation.276 Part performance of an obligation, either before or after a breach thereof, where expressly accepted by the creditor in writing, in satisfaction, or rendered in pursuance of an agreement in writing for that purpose, though without any new consideration, extinguishes the obligation.277

Where payment has been made to the sheriff, under an execution against the plaintiff, in accordance with statute, the particulars should be stated.27 278 An answer setting up payment after suit brought is good, although it demand that the complaint be dismissed, and judgment granted for costs. Under the code, no formal conclusion is required, and no judgment or relief is required to be prayed for, except where the defendant. asks affirmative relief against the plaintiff.279 An answer alleging payment is the proper form in which to set up the defense of a presumption of payment arising from lapse of time, under New York statute.2 280 A receipt in full, given by the plaintiff after suit is brought, is a good defense by way of plea.281 That the time of payment has been extended must be specially pleaded.282 It is not essential to designate the time of payment, though it ought to appear to have been before suit.283 Alleging that the defendant paid the plaintiff the several, etc., pursuing the terms of the complaint, imports payment of interest as well as the principal, and it is therefore unnecessary to aver its receipt in full satisfaction.284 By the pleas of payment and payment with leave the defendant does not put in issue his original legal liability. Under such pleadings he can only show that he has paid the debt, or that he has an equitable defense to the action.285 Under a simple allegation of payment, evidence of any facts which amount to actual payment by the person alleged to have made it is admissible.286 In a plea of pay

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Salazar v. Taylor, 18 Colo. 538, 33
Pac. 369.

282 Allen v. Bruesing, 32 Ill. 505; Newell v. Salmons, 22 Barb. 647. See, also, Goddard v. Fulton, 21 Cal. 430.

283 Bird v. Caritat, 2 Johns. 342. 284 Chew v. Woolley, 7 Johns. 399. 285 Loose v. Loose, 36 Pa. St. 538. 286 Farmers etc. Bank of Long Island v. Sherman, 6 Bosw. 181, 33 N. Y. 69.

ment, it is sufficient to allege payment generally, without stating the amount paid, the date of payment, or the person to whom made.287 But where an answer alleges payment in goods and services, it must also be alleged that the plaintiff agreed to accept them as payment.288 An allegation of payment in answer upon information and belief is held sufficient.289

§ 530. Payment by note.-Under an answer averring payment by note, evidence of payment in money or by check is inadmissible.200 This rule is only to be applied to avoid surprise or prejudice to the plaintiff.291

§ 531. Payment-Acceptance of negotiable paper-Check.-The acceptance of a negotiable promise of payment from a debtor suspends the remedy upon the original indebtedness, but acceptance of a non-negotiable promise does not, unless it is founded upon a new consideration.292 An answer which states that defendant gave his check for the sum lent, and interest to the time it was given, and that the plaintiffs have not returned it, and that it is still outstanding, is insufficient, unless it also avers that plaintiffs have negotiated it to a third person, who holds or owns it.293

§ 532. Release-How pleaded, and effect of.-A release by one of several joint plaintiffs is a bar to the action.294 A sealed release to one of several joint obligors inures to the benefit of

287 Johnson v. Breedlove, 104 Ind. 521, 6 N. E. 906; State v. Early, 81 Ind. 540.

288 Corbett v. Hughes, 75 Iowa, 281, 39 N. W. 500.

289 First Nat. Bank v. Roberts, 2 N. Dak. 195, 49 N. W. 722. What amounts to an allegation in pleading, of impossibility to excuse non-payment. O'Reily v. Mutual Life Ins. Co., 2 Abb. Pr. (N. S.) 167. For an answer by a defendant sued as factor under del credere commission, showing a remittance by instruction of his principal, see Heubach v. Rother, 2 Duer, 227.

290 Canfield v. Miller, 13 Gray, 274.

291 Farmers etc. Bank v. Sherman, 6 Bosw. 181.

292 Geller v. Seixas, 4 Abb. Pr. 103; Ranken v. Deforest, 18 Barb. 144. See Combination etc. Co. v. St. Paul City R. R. Co., 47 Minn. 207, 49 N. W 744.

293 Strong v. Stevens, 4 Duer, 668. Compare Geller v. Seixas, 4 Abb. Pr. 103; Crowe v. Clay, 25 Eng. L. & Eq. 451; Thayer v. King, 15 Ohio. 242, 45 Am. Dec. 571.

294 Austin v. Hall, 13 Johns. 286, 7 Am. Dec. 376. And see Mott v. Burnett, 2 E. D. Smith, 50; Hawn v. Seventy-Six Land etc. Co., 74 Cal. 418, 16 Pac. 196. Sce Clark V. Child, 66 Cal. 87, 4 Pac. 1058.

all;295 otherwise in case of a covenant to not sue.296 In California, a release of one of two or more joint debtors does not extinguish the obligations of any of the others, unless they are mere guarantors; nor does it affect their rights of contribution from him.297 An equitable discharge from judgment does not support a plea of payment, but should be specially pleaded as a release, and a defendant, being surety, having thus incorrectly pleaded, was allowed to amend, on the condition that he should recover no costs of action.298 A release under seal of one of several joint or joint and several debtors or obligors, is a release to all,299 and extinguishes the obligation.300 If any matter of defense has arisen after an issue in fact, it may be pleaded by the defendant; as that the plaintiff has given him a release, or, in an action by an administrator, that the plaintiff's letters of administration have been revoked.301 A release by the plaintiff must be specially pleaded.302 A release given after issue is joined in an action can properly only be the subject of a supplemental answer, and not of an amendment to that originally put in.303 The law implies the release and discharge of a right of action, where the creditor voluntarily delivers to his debtor the bond, note, or other evidence of his claim.304 The destruction or cancellation of a written contract, or of the signature of the parties liable thereon, with intent to extinguish the obligation thereof, extinguishes it as to all parties consenting to the act.305 The intentional destruction, cancellation, or material alteration of a written contract.

295 Rowley v. Stoddard, 7 Johns. 207. 296 Tuckerman V. Newhall, 17 Mass. 583; Chicago v. Babcock, 143 Ill. 358, 32 N. E. 271. See, also, Harrison v. Close, 2 Johns. 448, 3 Am. Dec. 444.

As to

297 Cal. Civ. Code, § 1543. release generally, see Cal. Civ. Code, §§ 1541, 1542.

298 Shelton v. Hurd, 7 R. I. 403, 84 Am. Dec. 564.

299 Armstrong v. Hayward, 6 Cal. 185; Rowley v. Stoddard, 7 Johns. 207; American Bank v. Doolittle, 14 Pick. 126; Tuckerman v. Newhall, 17 Mass. 583; Goodnow v. Smith, 18 Pick. 415, 29 Am. Dec. 600. And so, in the case of joint wrongdoers. Pogel v. Meilke, 60 Wis. 248, 18 N. W. 927; Ellis v. Esson, 50 Wis. 138,

36 Am. Rep. 830, 6 N. W. 518; Seither V. Philadelphia Traction Co., 125 Pa. St. 397, 11 Am. St. Rep. 905, 17 Atl. 338, 4 L. R. A. 54.

300 McCrea v. Purmort, 16 Wend. 474, 30 Am. Dec. 103; cited in Prince v. Lynch, 38 Cal. 528, 99 Am. Dec. 427.

301 Yeaton v. Lynn, 5 Pet. 223, 8 L. Ed. 105.

302 1 Van Santv. 403; Turner v. Caruthers, 17 Cal. 431; Coles v. Soulsby, 21 Cal. 50.

303 Matthews v. Chicopee Manuf. Co., 3 Robt. 711.

304 Poth. Obl., n. 608, 609; Bouv. Law. Dict., tit. Release; Albert's Exrs. v. Ziegler's Exrs., 29 Pa. St. 50; Beach v. Endress, 51 Barb. 579. 305 Cal. Civ. Code, § 1696.

by a party entitled to any benefit under it or with his consent, extinguishes all the executory obligations of the contract in his favor, against parties who do not consent to the act.306 Where

a contract is executed in duplicate, an alteration or destruction of one copy, while the other exists, is not within the provisions of the last section.307 Release of property from levy on execution discharges third parties who are liable collaterally, or as sureties therefor.308 To avoid circuity of action, a covenant may be pleaded as a release, but it must be a covenant between the parties to the original obligation, and must contain words that will give the covenantee a right of action, which will precisely countervail that to which he is liable.309

§ 533. Statute of frauds.-A plea of the statute of frauds should expressly aver that the contract concerning the lands sought to be enforced was not in writing.310 In an action on a contract not in writing, but which to be binding on defendant should be in writing, under general denial the existence of the contract is in issue.3: 311 Or defendant may deny that the contract is in writing or that it is subscribed.312 The rule under the former practice, that when the terms of a contract are in dispute, and the answer does not deny the contract, the terms of it cannot be proved by parol, is altered by the New York code, and now an answer is sufficient which admits the making of a contract and sets out its terms, although it omits to set up the statute of frauds as a bar.313 In New York the rule now is that where a complaint on contract does not show the contract sued on to be invalid under the statute of frauds, the statute is waived by the defendant unless specially pleaded as a defense, and cannot be taken advantage of under a general denial.314 Averments in

pleadings in avoidance of the statute of frauds must not only

As to

306 Cal. Civ. Code, § 1700. 307 Cal. Civ. Code, § 1701. release by novation, see Cal. Civ. Code, §§ 1530-1533.

308 Mulford v. Estudillo, 23 Cal. 94. 309 Garnett V. Macon, 2 Brock. Marsh. 185, Fed. Cas. No. 5245, 6 Call, (Va.) 308.

310 Bean v. Valle, 2 Mo. 126.

311 Livingston v. Smith, 14 How. Pr. 492; Amburger v. Marvin, 4 E. D. Smith, 393; Champlin v. Parish,

11 Paige, 408; Haight v. Child, 34 Barb. 191.

312 Id.; Cozine v. Graham, 2 Paige, 181; Ontario Bank v. Root, 3 Paige, 478; Harris V. Knickerbocker, 5 Wend. 638.

313 Haight v. Child, 34 Barb. 186. 314 Crane v. Powell, 30 Abb. N. C. 419, 139 N. Y. 379, 34 N. E. 911. And see Porter v. Wormser, 94 N. Y. 431; Wells v. Monihan, 129 N. Y. 161, 29 N. E. 232.

be direct and positive, but they must be clear and unequivocal, or they will not be regarded as sufficient, either in form or substance.315 When a sale of personal property above the value set in the statute of frauds is pleaded in an action at law, it is not necessary to plead facts in avoidance of the statute.316 The title being no part of an act, it need not be recited.317 That neither the defendant nor any person by him lawfully authorized did ever make or sign any contract or agreement in writing, for making or executing any lease to the said plaintiff, of the same premises, or any of them, or of any part thereof, or to any such effect as is alleged; or any memorandum or note in writing of any agreement whatsoever, for or concerning the demising or leasing, or making or executing any lease of the said premises, or any of them, or any part thereof, to the plaintiff, is a sufficient allegation.318 A plaintiff's recovery cannot be barred by the statute of frauds, unless the statute be pleaded.319 When the defendant is charged as an original debtor under the common counts in assumpsit, without intimation as to a guaranty, it is not necessary for him to plead specially that the contract was one of guaranty, and was void under the statute of frauds, because not in writing, but he may in such case avail himself of the statute under the general denial.320 Where a contract is void ab initio, a general plea of non est factum is proper. Where it is merely voidable, a special plea setting forth the special circumstances is necessary.

315 Von Trotha v. Bamberger, 15 Colo. 1, 24 Pac. 883.

316 Shelton v. Conant, 10 Wash. St. 193, 38 Pac. 1013.

317 Eckert v. Head, 1 Mo. 593. 318 Equity Draftsman, 654.

319 Osborne v. Endicott, 6 Cal. 149, 65 Am. Dec. 498; Maynard v. Johnson, 2 Nev. 16; Benjamin v. Mattler, 3 Colo. App. 227, 32 Pac. 837; Hamill v. Hall, 4 Colo. App. 290, 35 Pac. 927; Broder v. Conklin, 77 Cal. 330, 19 Pac. 513; Cruse v. Findlay, 38 N. Y. Supp. 741; Hogan v. Easterday, 58 Ill. App. 45. Compare McCann V. Pennie, 100 Cal. 547, 35 Pac. 158; Feeney v. Howard, 79 Cal. 525, 12 Am. St. Rep. 162, 21 Pac. 984, 4 L. R. A. 826; Smith v. Taylor, 82 Cal. 533. 320 Harris v. Frank, 81 Cal. 280, 22 Pac. 856.

321 Rex v. Ellis, 2 Stra. 1104; Bull.

321

N. P. 172; Somes v. Skinner, 16 Mass. 348; Anthony v. Wilson, 14 Pick. 303; Bottomley v. United States, 1 Story C. C. 135, Fed. Cas. No. 1688; Marine Ins. Co. v. Hodgson, 6 Cranch, 206, 3 L. Ed. 200; Greathouse v. Dunlap, 3 McLean, 303, Fed. Cas. No. 5742. As to what contracts are required to be in writing, see Cal. Civ. Code, §§ 1624, 1739, 1741, 2794. For cases held to be within the statute, see Fuller v. Reed, 38 Cal. 99; Patten v. Hicks, 43 Cal. 509; Swift v. Swift, 46 Cal. 266; Pratalongo v. Larco, 47 Cal. 378; Gray v. Corey, 48 Cal. 208; Hagar v. Spect, 48 Cal. 406; Gallagher v. Mars, 50 Cal. 23; Stewart v. Jerome, 71 Mich. 201, 15 Am. St. Rep. 252, 38 N. W. 895. For cases held not to be within the statute, see Heyn v. Phillips, 37 Cal. 529; Murphy v. Rooney, 45 Cal. 78; Brennan v.

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