Isaac E. Smith et al., Respondents, v. Nelson Holland et al., Appellants

Isaac E. Smith et al., Respondents, v. Nelson Holland et al., Appellants. (Argued May 26, 1874; decided September term, 1874.) Where in a promissory note is embodied also a receipt, the receipt is open to explanation the same as if it were in a separate instrument. This was an action to recover back moneys alleged to have been overpaid. The plaintiffs, who were lumber dealers in Few York, employed the defendants, who were purchasers at Toledo, to purchase for them on commission. This defendants did, drawing drafts for the purchases and commissions. Plaintiffs claimed damages on a quantity of white wood, chesnut and ash, and to settle this claim defendants gave their note for $800, which was stated therein to be “in full of all demands to date,” and at the same time they gave plaintiffs a certificate that they had that day settled the year’s business with plaintiffs in full. At the time of this settlement a quantity of black wálnut had not arrived. Immediately after the settlement and giving of the note, one of the defendants with whom the settlement was made told plaintiffs that if there was any deficiency in the quantity of this black walnut they would make it good. On its arrival it was found to be short nearly 4,000 feet. Plaintiff's had paid the defendants for the full amount, as represented by defendants, and this action was to recover the amount overpaid. Held, that plaintiffs were not precluded by the settlement and the note, but that the receipt therein was open to explanation by parol as to what was settled. F. G. Salmon for the appellants. Samuel Hand for the respondents. [MAJORITY — Gray and Earl, CC.,] Gray and Earl, CC., read for affirmance. All concur. Judgment affirmed.