Galbraith v. Starks

• Decision Date: 14 April 1904
• Parties: GALBRAITH v. STARKS.
• Court: Kentucky Court of Appeals

79 S.W. 1191

117 Ky. 915

GALBRAITH v. STARKS.

Court of Appeals of Kentucky.

April 14, 1904

Appeal from Circuit Court, Todd County.

"To be officially reported."

Action by A. M. Starks against T. W. Galbraith. Judgment for plaintiff. Defendant appeals. Affirmed.

J. R Mallory and Perkins & Trimble, for appellant.

Browder & Browder, for appellee.

O'REAR J.

Beginning about 1886, and down to 1892, appellant became indebted to appellee in numerous transactions, all represented by the former's promissory notes, in the sum of approximately $5,000. Three of the transactions were the purchase of real estate; another, the purchase of a half interest in a drug store owned by the parties as copartners; others, rent of house. In the purchase of the interest in the store appellant admitted, by writing then signed, that the notes and accounts owing the firm, amounting to the sum of $885 belonged to appellee, but that appellant was to collect them in the firm's name, and pay over to appellee the sums collected. Numerous payments were made, at irregular intervals, upon this gross indebtedness. All of the notes were surrendered by appellee as having been paid, except one of $400, subject to certain indorsed credits, which was retained by appellee, and to collect which, and enforce the lien reserved upon a lot, this suit was brought. Appellant defended, pleading payment, and, in addition, seeking by counterclaim to recover of appellee $169.60, with interest which he alleged he had overpaid. Although the various transactions had no connection one with another, it was asserted that payments were made indiscriminately by appellant to be applied on his indebtedness to appellee, and that it was so applied by the latter, extinguishing all the other debts, as well as the debt of which the note sued on was a part, and overpaying that debt, as stated. An issue was tendered upon the plea, and the proof heard. The only witnesses were the two parties. The trial court dismissed the counterclaim, and adjudged the recovery by appellee of the amount sued for; thus finding against the plea of payment. If there was evidence enough to sustain or refute the plea, the question would be one of fact. But we have come to the conclusion that there is not enough evidence for either purpose.

Able counsel have each presented theories of probability that are not without plausibility. Yet in accepting either we would be forced to resort solely to conjecture--conjecture, it is true, that seems more or less probable. This state leads to a closer analysis of the rules of evidence upon which the respective theories must in part rest. The burden of proof upon the whole case was upon appellant. Had he testified clearly of his own knowledge as to the facts upon which his counsel rely, his case might have been made out. So with appellee. But the payments referred to were mostly made 10 or 12 years before the parties came to testify. Their recollections as to those transactions are shown to have been very misty, and far from satisfactory. They were merchants, living in different communities. Nearly all the payments were by bank checks. That is, appellant had drawn certain checks on his banker in favor of appellee, but not stating in them the consideration. Some few payments are claimed to have been made in money. Appellant contends that as he has shown an aggregate of payments of money (by checks and otherwise) to appellee, within the period since the debts were created, equal to or in excess of his indebtedness to appellee, he has done enough to shift the burden to appellee to show that they, or some of them, were not made on these notes.

"Payment" is a term of art, as used in law. It involves more than the passing of money, or its accepted equivalent, from one to another. The acceptance of money or other thing of value in satisfaction of a debt, or in exchange for labor, goods, or other commodity, will be a payment, where it was so intended by the payor. Generally there must be something shown in addition to the mere passing of money from one to the other. True, that fact may be a strong circumstance in determining whether it was intended and accepted as a payment on a debt. And other slight circumstances might satisfy the judicial inquiry as to the intent and purpose of such transaction. But it is not unusual for persons indebted to have other transactions with their creditors, and to pay money for something else than upon the pre-existing debt. Whether there was, or not, a payment made upon a particular debt, may frequently be of vast importance to the parties, as affecting other rights, as well as the rights of others. So that the intent of the parties becomes a material element in determining whether a transaction is a payment. The one who asserts that it is must prove it. There is no reason for a rule that would change the law of evidence, where a payee of money happens to be a creditor of the payor, so as to impose upon the former a burden, and relieve the latter of it, contrary to the general rule in all other cases.

But going further in this case, it was shown, as has been indicated, that appellant undertook in 1888 to collect some $885 in notes and accounts for appellee, and to transmit him the money so collected. Appellee says appellant did collect some of this money and paid it, and that some of the payments now sought to be applied to the land notes sued on were in reality made upon account of those...