majority"> Ruggles, Ch. J.

The supreme court neld that the non-suit was correctly ordered on the presumption that the rent had been paid previous to the agreement of April 2, 1846, or that it was deducted from the $550 paid by the plaintiff' on the 2nd of May. But after some doubt, and hesitation I have come to the conclusion that this view of the case can not be sustained. The presumption of payment is not raised by the written contract of the 2nd of April. That contract did not purport to be either a general settlement between the parties, or an extinguishment of the rent already accrued. It broke up the relation of landlord and tenant from the date of the contract only. The remainder of the term was surrendered, but the lease on which the rent accrued was not thereby canceled as to the rent then due. It may be doubtful whether the defendant understood the effect of the contract; and this is rendered more doubtful still by the plaintiff’s offer.in relation to the alteration of the contract by consent, after it had been executed. But the judgment of the court must be founded on the instrument as it stands. And we find in it nothing operating as a release or extinguishment of the rent which had fallen due. It would have been easy, if the parties had so intended, to insert in the contract that Sperry released or gave up the unpaid rent; but they put in nothing of the kind. The substance of the contract was a purchase by Sperry of Miller’s title and interest in the leased farm and the 32 acre lot, for $550, saying nothing-in relation to the rent due, which at the time of the con *339 tract was a personal debt due from Miller to Sperry. If the debt had been due on the sale of a horse by Sperry to Miller, or for the rent of other premises, the contract of the 2d of April certainly could not have affected it; and it is not easy to perceive why the rent past due for the same land, which had become detached from the land, like fruit fallen, should be regarded as released by a contract which says nothing about it.

Nor can it be supposed that the rent due had been deducted from the price of Miller’s interest in the two farms; because, first, no mention is made of it in the contract and no proof given; and secondly, because there is nothing in the contract by which it can be inferred that the value of Miller’s interest in the lands were estimated by the'parties at more than $550 which was the contract price of Sperry’s purchase; and thirdly, because the rent now claimed was due at the date of the contract and the price of Sperry’s purchase was not to be paid until a month after-wards.

We think there was no ground for the presumption that the $65 of rent due, was deducted from the $550 receipted by Miller on the 2d of May. The rent was due on the lease. The $550 was due on the contract of purchase. Miller in his receipt endorsed on the contract, admits the payment “ of the within mentioned $550.” This was prima facie evidence that the whole sum was paid; and casts on the. defendant the burthen of proving that the rent was allowed as part of that sum. If the liability to pay the rent was disputed, it was prudent to say the least, on the part of Sperry to pay the whole sum, for the complete fulfillment of his contract, and to avoid litigation on that point. But whether disputed or not the receipt for a specific sum, due on the contract from the plaintiff, does not afford the presumption that a different sum due from the defendant to the plaintiff' on another instrument, was paid or settled at the same time. If it had in fact been so settled a different kind of voucher would in the usual *340 course of busiress have been given by the defendant to the plaintiff', showing the deduction and allowance! or a separate voucher would have been taken by the defendant which ought to be produced.

The judgment of the supreme court ought to be reversed and a new trial ordered.

Taggart, J., delivered a written opinion in which he arrived at the same conclusion.

Judgment reversed and new trial ordered.

Citation profile

How this case has been treated — in progress