Morse v. Small , 73 Me. 565 ( 1882 )

Virgin, J.

After the general issue was pleaded and joined, the defendant, at the September term, 1880, pleaded,a written acknowledgment of payment in full of the note in suit and a relinquishment of all claims by the plaintiff puis darrein continuance.

In his replication the plaintiff alleged that by agreement the plaintiff’s costs were to be paid as a condition precedent to the validity of the written acknowledgment, and that they had not been paid.

The defendant rejoined that he did not agree to pay the costs as a condition precedent to the validity of the written acknowledgment, and tendered an issue thereon to the country, which was joined by the plaintiff. Thereupon the parties went to trial and reported the testimony for .the law court to render judgment upon.

The plaintiff and his wife testify unqualifiedly that by express agreement the plaintiff’s costs were to be paid before the suit was settled and the note given up. The brother of the defendant who was the negotiator of the attempted settlement also testified to the same and that he wrote a letter to the plaintiff’s counsel .stating such to be the agreement and requesting him to make the bill of costs as reasonable as he could. Moreover he testifies that the defendant understood that the costs were to be paid out of the fifty dollars, which the defendant paid to the witness.

Receipts though in writing are always open to explanation by parol.

We have no doubt of the ‘soundness of the decisions cited by the defendant upon the question of estoppel; but we do not perceive,their applicability to the case at bar. .

The defendant having waived the general issue and placed his case upon a special issue which the testimony compels us to find against him, the plaintiff is entitled to a peremptory judgment on the note. Mckeen v. Parker, 51 Maine, 391; Spauld. Pr. 373, 374.

Judgment for the plaintiff for one hundred dollars and interest from date of writ.

Walton, Barrows, Danforts and Symonds, JJ., concurred.