On Rehearing. Appellant now contends that the rejected evidence regarding the overpayment of certain sums of money to plaintiff's intestate purposed to show that the mortgage and *Page 581 rent debts were co-existent, that he was liquidating both, serially, by the payments, proof of which he attempted to offer; and which proof (excluded) would have shown that, in making payments on these debts, he had paid in excess of both. But the record clearly discloses otherwise.
Intention to pay and receive as payment is essential to constitute payment. A debt is not paid unless by mutual intention of the parties money or something of value is given and accepted in satisfaction thereof. 48 C.J. 586-7, Notes 16 and 17.
There was no proof or attempt to prove that any payments were ever made or accepted in liquidation of the rent debt now counted upon. As to the purport of this excluded evidence, the appellant in his original brief asserted: "The Defendant's contention which is plainly evident from the record tended to show that he owed the Plaintiff a Mortgage Debt of $3,000.00, which was made in payments from time to time * * * but the Defendant finally, from source, had the dawning of an idea that he had paid too much. That the total sum he had owed the Plaintiff $3810.00, that was principal and interest, but that he had paid the Plaintiff $4481.00, the last payment of $1482.00 had run the mortgage debt payments over what he owed by $671.00 he owed the rent of $127.50, but with this off he still had over paid the Plaintiff by $443.50." Thus his clear statement that the mortgage debt — not rent debt — had been overpaid.
His motion in the lower court to transfer the cause to equity was likewise predicated upon this same claim of excess payment, by $671, of the mortgage and a right of set-off and counterclaim against the debt sued on.
Our original interpretation is therefore reasonable that the purpose of this rejected evidence was to defeat the present action by proof of overpayment of a previous mortgage debt. This of course was not permissible in the absence of a mutual agreement that the debt should be so satisfied.
Whether or not payment is effected depends upon the mutual intent of the parties manifested to each other. Equitable Life Assur. Soc. v. Brandt, 240 Ala. 260, 198 So. 595, 134 A.L.R. 555.
And, in order to constitute payment, the money must have been delivered by the debtor or his representative with intent on the debtor's part to extinguish the debt, wholly or partially, and accepted as such by the creditor. Smith v. Pitts, 167 Ala. 461,52 So. 402.
It is also observed in Corpus Juris: "Whether or not a transaction constitutes payment depends largely upon the intention of the parties; * * * and where it is delivered and accepted as payment of a debt which does not exist, it does not discharge another debt between the same parties." 48 C.J. p. 586-7.
It is evident here that the appellant was manifesting no intention of paying the rent debt, when he paid an excess of the amount due by the mortgage.
If he overpaid the mortgage debt under a mistake of fact, it is held he may recover the excess. Bell v. Barnes, 238 Ala. 248,190 So. 273; Mobile County v. London, etc., Ins. Co.,27 Ala. App. 384, 173 So. 99; Beasley v. Beasley, 206 Ala. 480,90 So. 347; Franklin Life Ins. Co., v. Ward, 237 Ala. 474,187 So. 462.
And, though his claim may be adjudicated in a separate suit or, as originally suggested above, in the present action by a proper plea of set-off and counterclaim, proof of such excess payment may not be here employed to defeat recovery of money due by an entirely different contract.
"A cross-demand, no matter how clearly established, is not payment, and cannot be treated as such. It can become payment by the agreement of the parties to so treat and liquidate it, and in no other way." McCurdy v. Middleton, 82 Ala. 131, 137,2 So. 721, 724, Stone, C. J., writing.
The application is overruled.
Rehearing denied. *Page 582