§ 1420. Exception.- Payment of a part, however, at a different time,' or place, or in a different medium,3 than that stipulated for, will suffice to sustain the agreement to discharge the residue; and, where the amount is unliquidated and uncertain, payment of any sum made and accepted as full payment will discharge the whole.*

IV.

THE MEDIUM OF PAYMENT.

1421. Unless otherwise agreed, payment to be in lawful money. Unless otherwise agreed upon, payment is presumed to be required in cash and in the lawful money of the country. Parties may stipulate for payment in goods or notes or any other lawful thing that pleases them. They may agree that payment shall be made in gold or silver or any other form of money, or in the currency of a particular time or place;"

Le Page v. McCrea, 1 Wend. (N. Y.) 164, 19 Am. Dec. 469; Friedberg v Moffett (1895), 91 Hun (N. Y.), 17.

128 Mass. 25; Goodwin v. Follett, 25 2 Metc. (Mass.) 283, 37 Am. Dec. 95; Vt. 386; Wheeler v. Wheeler, 11 Vt. 60; Shaw v. Clark, 6 Vt. 507, 27 Am. Dec. 578; Warren v. Skinner, 20 Conn. 559; Obendorf v. Union Bank, 31 Md. 126, 1 Am. R. 31; McKenzie v. Culbreth, 66 N. C. 534; Bryan v. Brazil, 52 Iowa, 350, 3 N. W. R. 117; Lankton v. Stewart, 27 Minn. 346, 7 N. W. R. 360.

1 Pearson v. Thomason, 15 Ala. 700, 50 Am. Dec. 159; Goodnow v. Smith, 18 Pick. (Mass.) 414, 29 Am. Dec. 600; Brooks v. White, 2 Metc. (Mass.) 283; Booth v. Smith, 3 Wend. (N. Y.) 66; Smith v. Brown, 3 Hawks (N. C.), 580. 2 Jones v. Bullitt, 2 Litt. (Ky.) 49; Rising v. Patterson, 5 Whart. (Pa.) 316; McKenzie v. Culbreth, 66 N. C. 534.

3 Jones v. Bullitt, supra; Savage v. Everman, 7 Pa. St. 315; Strang v. Holmes, 7 Cow. (N. Y.) 224; Blinn v. Chester, 5 Day (Conn.), 359; Bull v. Bull, 43 Conn. 455; Brooks v. White,

4 Donohue v. Woodbury, 6 Cush. (Mass.) 148, 52 Am. Dec. 777; McDaniels v. Lapham, 21 Vt. 222; Goodwin v. Follett, 25 Vt. 386; Warren v. Skinner, 20 Conn. 559; Bull v. Bull, 43 Conn. 455.

5" Cash or its equivalent.”. Where the contract calls for "cash or its equivalent," but the parties have not agreed as to what shall be deemed an equivalent, the seller is not bound to accept drafts on third persons in payment, and the fact that he did so on several occasions does not bind him to continue. Hassard v. Hardison (1895), 117 N. C. 60, 23 S. E. R. 96.

6 For an elaborate discussion of the validity and effect of contracts stipulating that payment shall be made in money of a particular sort, e. g., in

but if they do not, the current money of the country is intended.1

§ 1422. Money must be genuine. It follows necessarily from the rules already stated that the money which is to constitute the medium of payment must be genuine money. Payment in spurious or debased coin, forged bills or other worthless matter, in the absence of fraud or negligence on the part of the payee, is therefore of no effect, and the original indebtedness remains undischarged.2

1423. Payment by bill or note-Buyer's note presumptively not payment. The parties may agree, either expressly or impliedly, that the buyer's negotiable bill or note shall be received in absolute payment for the goods, and where it is so received the paper must be relied upon, and recourse cannot be had to the original account. The mere fact, however, that the buyer gives his bill or note for the amount of the goods does not necessarily argue that it is received in absolute gold or silver coin, see note to 29 L. that the agreement must be formal R. A. 512 et seq. and 593 et seq.

1 As to payment in Confederate money when that was current, see Hendry v. Benlisa (1896), 37 Fla. 609, 20 S. R. 800, 34 L. R. A. 283.

2 Markle v. Hatfield, 2 Johns. (N. Y.) 455, 3 Am. Dec. 446; Goodrich v. Tracy, 43 Vt. 314, 5 Am. R. 281; First National Bank v. Buchanan, 87 Tenn. 32, 9 S. W. R. 202, 1 L. R. A. 199, 10 Am. St. R. 617; Eagle Bank v. Smith, 5 Conn. 71, 13 Am. Dec. 37; West Philadelphia National Bank v. Field, 143 Pa. St. 473, 22 Atl. R. 829, 24 Am. St. R. 562; Ritter v. Singmaster, 73 Pa. St. 400: Mount v. Scholes, 120 Ill. 394, 11 N. E. R. 401; Clift v. Moses, 112 N. Y. 426, 20 N. E. R. 392.

It is sometimes said that the agree ment to receive the bill or note in absolute payment must be express, but the true rule is believed to be, not

and entered into in express terms,
but that it must be affirmatively es-
tablished - there must be an agree
ment with reference to that special
subject, but the fact of such an agree-
ment may be found from the circum-
stances of the case. Macomber v.
Macomber, — R. I. ——, 31 Atl. R. 753;
Whitbeck v. Van Ness, 11 Johns.
(N. Y.) 409, 6 Am. Dec. 383; Gibson v.
Tobey, 46 N. Y. 637, 7 Am. R. 397;
Hart v. Boller, 15 Serg. & R. (Pa.)
163, 16 Am. Dec. 536; Berry v. Griffin,
10 Md. 27, 69 Am. Dec. 123; Riverside
Iron Works v. Hall, 64 Mich. 165, 31
N. W. R. 152; Patten v. Hood, 40 Me.
457; Burton v. Wells, 30 Miss. 688.

4 Hoopes v. Strasburger, 37 Md. 390, 11 Am. R. 538; Berry v. Griffin, supra; Glenn v. Smith, 2 G. & J. (Md.) 493, 20 Am. Dec. 452.

payment. By the weight of authority, the bill or note of the buyer given for the goods, whether at the time of the sale or subsequently, is presumptively a conditional payment only, and the debt is not paid unless the bill or note be paid.1 To make the instrument operate as an absolute payment, there must have been a special agreement to that effect.

$1424.- Contrary rule in few States. In a few States, on the other hand, the rule is reversed, and the buyer's negotiable bill or note is presumptively an absolute payment, though it may have been shown to have been conditional only. This latter rule prevails in Indiana,' Louisiana, Maine, Massachusetts and Vermont."

I See Randolph, Com. Paper (2d ed.), § 1509, where many cases are cited. See also Segrist v. Crabtree, 131 U. S. 287, 33 L. ed. 125, 9 Sup. Ct. R. 687; Reed v. Van Ostrand, 1 Wend. (N. Y.) 424, 19 Am. Dec. 529; American Brick & Tile Co. v. Drinkhouse (1897), 59 N. J. L. 462, 36 Atl. R. 1034; Joslin v. Giese (1897), 59 N. J. L. 130. 36 Atl. R. 680; Steinhart v. Mills, 94 Cal. 362, 29 Pac. R. 717, 28 Am. St. R. 132; Pritchard v. Smith, 77 Ga. 463: Bank v. Gifford, 79 Iowa, 300, 44 N. W. R. 558; Bradley v. Harwi, 43 Kan. 314, 23 Pac. R. 566; Au Sable Boom Co. v. Sanborn, 36 Mich. 358; Breitung v. Lindauer, 37 Mich. 217; Brown v. Dunckel, 46 Mich. 29, 8 N. W. R. 537; Geib v. Reynolds, 35 Minn. 331, 28 N. W. R. 923; Washington Slate Co. v. Burdick, 60 Minn. 270, 62 N. W. R. 285; Estate of Davis, 5 Whart. (Pa.) 530, 34 Am. Dec. 574: Weymouth v.

5 Daniel, Neg. Inst., § 1260; Randolph, Com. Paper, § 1517; Thacher v. Dinsmore, 5 Mass. 299, 4 Am. Dec. 61; Melledge v. Boston Iron Co., 5 Cush. 158, 51 Am. Dec. 59; Ely v. James, 123 Mass. 36; Dodge v. Emerson, 131 Mass. 467.

Sanborn, 43 N. H. 171, 80 Am. Dec. 144; Nightingale v. Chafee, 11 R. I. 609, 23 Am. R. 531; Moses v. Trice, 21 Gratt. (Va.) 556, 8 Am. R. 609; Nash v. Meggett, 89 Wis. 486, 61 N. W. R. 283; Zook v. Odle, 3 Colo. App. 87; Wyman v. Rae, 11 G. & J. (Md.) 416, 37 Am. Dec. 70; Otto v. Halff (1896), 89 Tex. 384, 34 S. W. R. 910.

2 Daniel, Neg. Inst. (4th ed.), § 1260; Randolph, Com. Paper (2d ed.), § 1509; Thompson v. Peck, 115 Ind. 512, 18 N. E. R. 16, 1 L. R. A. 201; Godfrey v. Crisler, 121 Ind. 203. 22 N. E. R. 999; Nixon v. Beard, 111 Ind. 137, 12 N. E. R. 131; Keck v. State, 12 Ind. App. 119, 39 N. E. R. 899; Olvey v. Jackson, 106 Ind. 286, 4 N. E. R. 149; Bradway v. Groenedyke, 153 Ind. 508, 55 N. E. R. 434.

3 Daniel, Neg. Inst., § 1260; Hunt v. Boyd, 2 La. 109.

4 Daniel, Neg. Inst., § 1260; Ran6 Daniel, Neg. Inst., § 1260; Randolph, Com. Paper, § 1517; Hutchins v. Olcutt, 4 Vt. 549, 24 Am. Dec. 634; Dana v. Binney, 7 Vt. 493; Farr v. Stevens, 26 Vt. 299; Dickinson v. King, 28 Vt. 378.

Note of third person.

In respect of the bill or note of a third person, distinctions are made based upon the time and the method of the transfer. If it be transferred for an antecedent debt, and is indorsed by the buyer, the latter is of course liable upon his indorsement; but if it be not indorsed, the prevailing rule is that the paper is presumptively to be regarded as conditional payment only, and not as an absolute one, unless there is evidence of an agreement to so regard it.' If the bill or note is transferred contemporaneously with the sale but without the buyer's indorsement, the prevailing rule regards it as presumptively absolute; if it be indorsed by the

buyer, it is then presumptively conditional. Some courts, however, treat it as presumptively absolute even in the latter

Presumptions not conclusive.-The presumption in any of these cases may be overthrown by evidence, though the burden of proof rests upon him who seeks to overthrow it. The sufficiency of the evidence is, of course, for the jury.

§ 1427. Action upon note or original consideration.Where the bill or note has not been received in absolute payment, the seller, upon default in payment of the paper, may, at his option, sue either upon the bill or note, or upon the original