I dissent. If this judgment is reversed it must be done because error was committed in the,reception of evidence, or because the defendants’ plea of payment was not "sufficient to permit proof that payment ivas made otherwise than by actual money.
No motion for judgment ivas made by the plaintiff, nor was there any motion made to disregard the plea and proof of payment, and the case went to the jury by consent of all parties upon the proposition as to whether or not the note in suit had' been in fact paid. Such mode of trial was a confession on the part of the plaintiff, that there ivas a question of fact for the jury to- pass upon and precludes it from moving to set aside the verdict against it on the ground that" it was against the weight of evidence. (Clement v. Congress Spring Co., 91 Hun, 636; affd., 158 N. Y. 692.)
The prevailing opinion concedes that under a general plea of payment a party may prove such payment by performance.of services or delivery of goods in satisfaction of the demand, and such is the express holding of Farmers & Citizens' Bank v. Sherman (33 N. Y. 69). In that case the question was squarely before the court. The action was upon a note payable in money. The defense was that it had been paid. The defendant was' permitted to show, against the objection of the plaintiff, that the evidence was incompetent under the answer because it gave no notice of tlie defendant’s intention to prove payment in any other way than by cash, that the defendant had delivered lumber to the plaintiff of sufficient value to satisfy the claim and that plaintiff had taken it in satisfac*398tion. The question of admissibility of such proof under the simple plea of payment was the main question in the case and the principal one discussed, and the decision has never been- questioned from the time it was rendered. -
The questions of the sufficiency of. the defendant’s plea of payment and the right of the plaintiff to ask that the verdict be set aside as against the weight of evidence are, therefore, eliminated, and the only question remaining is whether the parol evidence given by the defendant to the effect that' at the time the note was given, as well as thereafter, the plaintiff agreed that certain commissions earned and credits on paving contracts should be applied in satisfaction of the -note, which agreement was carried out by applying, such commissions, tended to vary the terms of the written note and was, therefore, incompetent. I,
It seems to me too plain for argument that such evidence did not tend to vary the terms of the written instrument and that it was entirely competent proof. The parol evidence did not purport to prove that the note was not to be paid at all, or that the amount stipulated was not to be paid, or that the time of payment was different from that expressed. All that the parol evidence .attempted to do was to show that the plaintiff had agreed to accept payment by. taking the commissions whicli the defendant Gréning had earned' and applying them on the note as well as the amounts earned on the contract. If the plea of payment alone was sufficient to permit proof of- payment in any manner other than- by cash, it would logically follow that parol evidence to show payment other than by cash Was competent. Such parol evidence was given in Farmers & Citizens’ Bank v. Sherman (supra) and neither'the counsel nor the various courts which passed upon the question seemed to have a suspicion that it was incompetent'because it tended to vary the terms of. the written instrument. In Davis v. Spencer (24 N. Y. 386) it was expressly held that an agreement' between the payee of the note and the maker to apply the indebtedness of the payee to the maker and his partner in payment of the note, operated as a satisfaction of the note, and that such agreement might be proved by parol evidence. To. the same effect is Eaves v. Henderson (17 Wend. 190). In Jilson v. Gilbert (26 Wis. 637) it was held that evidence of a .parol agreement that a *399note should be surrendered in satisfaction for services rendered to the payee by the maker did not tend to contradict the note and was, therefore, admissible.
It is true that in the above cases the parol agreements as to pay ment were made after the execution of the notes, but the rule can be no. different where the agreement is actually carried out and payment actually made in the - manner agreed. Even though the evidence of Grening as to what the president of the plaintiff said at tile time'the note was given was incompetent, it is not sufficient to reverse the judgment. All he testified to as occurring at that time was that the plaintiff’s president said that he would make up the difference in the next year’s, work and give such credit as that the defendants would lose nothing the following year. This did not amount to proof that the noté was never to be paid, or even that it was to be paid in a particular manner. If the defendant had stopped there he would have proved no payment of the note. What operated as a payment of the note was what in fact occurred more than three, years after the giving of the note. Grening testified, and there is written evidence of that fact, that the plaintiff credited the defendants with more than $43,000 on the 31st of December, 1906. Grening also testified that up to the time of the bringing of the action on the note he had earned in commissions at least $7,500 on wood-block paving, and the plaintiff’s president himself, on cross-examination, said that those commissions did in fact amount to $7,500, and that in addition thereto the defendant had earned more than $10,000 as commissions on asphalt pavement. On the trial the plaintiff confessed that $2,700, collected, from the Sigretto & Mannino judgment, should be .credited on the note in suit. Grening testified that after the giving of the note the plaintiff’s president agreed that those commissions should be applied in payment of it, and the president testified that he made no such . agreement. The jury found that such agreement was made. It was of no importance hdw much the other indebtedness of the National Trading Company to the plaintiff was if in fact the plaintiff had agreed to first apply payment on the note out of any earnings of the defendant company or the defendant Grening. James town Business College Assn. v. Allen (172 N. Y. 291) is not decisive of the question here involved. In that case there was an attempt to *400show a parol agreement that the note' in suit was - not to be paid at all unless the defendant availed herself of the scholarship or sold the same to some other person; In the present case the defendant does not dispute the note or.its amount, or terms, or that it is owing, but simply says that it has been paid in a specific manner. If no commissions had ever been earned there would have been none to apply' in payment. ‘They were earned, as plaintiff confesses, to .an amount largely in excess of th.e note, and I think the judgment should be-affirmed-. . ' . "
Scott, J., concurred. -
Judgment reversed, new trial ordered, costs to appellant to abide event.