Mordecai v. Stewart , 36 Ga. 126 ( 1867 )

Harris, J.

The awarding of a new trial in this case makes it unnecessary to decide the question of continuance moved by plaintiff in error.

As this cause does not come up upon a motion for a new trial, and refused, which would have opened it to the consideration of other questions connected with it, our adjudication is confined to what we deem an error in the presiding Judge’s charge, and which must have led the jury to make the verdict it did, and which seems to be unauthorized by any of the facts stated in the record. We decline to pronounce any opinion upon any other of the instructions or rulings of the Judge, except as to that portion in the following words: “As to the credit entered on the note since the war, you will find out if you can what was the agreement of the parties in relation to the same, and carry it out; and if you are not satisfied from the evidence as to the intention of the parties, then you are to find out from the evidence how this payment was made, and charge the plaintiff with the value of the same in our present currency.”

It seems to be a very clear principle, that where parties make an agreement, by which one pays and the other receives a certain amount, and which amount is credited on a promissory note, the note is satisfied or discharged only pro tanto, that is to the extent of the amount so paid, and that the remainder due on the note stands unaffected by the entry of such partial payment.

The amount thus credited cannot be enlarged, in the absence of any agreement of the parties, so as to extinguish a greater nominal amount of the note than the amount specified in the credit entered on the note. To make the above idea more explicit, we hold that in this case the credit of $15,325 extinguished that amount only of the note, leaving the remainder due on the note, after this allowance, in nowise affected by such payment.

Judgment reversed.