¶1Assumpsit for balance of account, submitted on report.
¶2At common law payment of part of the debt, as and for the whole, did not extinguish it, on the ground that the amount paid was no consideration for the release of the amount unpaid.
¶3By R. S., c. 82, § 38, this rule of law is changed, so that now in this State no action can bo maintained for the balance of a debt where an amount, however small, has been paid in full discharge of the whole debt. But in order to render payment of part, an extinguishment of the whole debt under this statute, both parties must concur in the understanding that the amount paid is paid and received as and for the whole debt.
¶4In this case there was no such understanding. The plaintiff agreed with the defendant that he might take his own time to pay the balance of the debt, not that the whole debt should be discharged. The statute relied upon by the defendant being inapplicable ho is liable at common law for the balance of the plaintiffs’ account.
¶5These views are in accordance with the opinion of the justice presiding, and the report provides that if his opinion is sustained the defendant is to be defaulted. Defendant defaulted.