Thomas & Cross v. Brown

Citations

• 116 Va. 233
• 81 S.E. 56
• 1914 Va. LEXIS 25

Syllabus

<p>1. Payment&emdash;Common Law as to Part Payment.&emdash;At common law nothing less than the payment of the whole sum due would • satisfy the demand. A party never could be held to surrender his rights under contract, unless it appeared that he made the surrender understandingly and intentionally, and freely, nor could such surrender or release be implied by his act. It never could be implied by the act of a party accepting a part of what he had a right to demand, that he released the security for the balance without consideration.</p> <p>2. Payment&emdash;Virginia Statute as to Part Payment&emdash;Burden of Proof &emdash;Receipt in Full.&emdash;The Virginia statute allowing part to extinguish a money demand is coupled with the condition or qualification “when expressly accepted by the creditor in satisfaction, and rendered in pursuance of an agreement for that purpose.” And the burden is on the debtor to bring himself within the statute. The statute was never intended to enable a debtor to perpetrate a wrong and injustice upon his creditor as is attempted in the case at bar. Here the creditors were in a desperate strait for money, the correctness of their bill was not denied, and they signed a receipt stating the sum received to be “payment in full,” the settlement was not made as a of differences, but only because the sum received was deliberately held out to them as the only relief they could get outside of the law. Under these circumstances, it is held that the creditors are not bound by their acceptance and may recover the balance of their debt.</p>