PAYMENT. The fulfilment of a promise, or the performance of an agreement.
The discharge in money of a sum due.
It implies the existence of a debt, of a party to whom it is owed, and of a satisfac tion of the debt to that party; Tuttle v. Arm stead, 53 Conn. 175, 22 Atl. 677.
The word payment is not a technical term: it has been imported into legal proceedings from the ex change, and not from law treatises. When pay ment is pleaded as a defense, the defendant must prove the payment of money, or something ac cepted in its stead, made to the plaintiff or to some person authorized in his behalf to receive it; 2 Greenl. Ey, 509.
Payment, in its most general acceptation, is the accomplishment of every obligation, whether it consists in giving or in doing: solutio est preestatiD qua quod tin obligatione eat.
It follows, therefore, that every act which, while it extinguishes the obligation, has also for its ob ject the release of the debtor and his exemption from liability, is not payment. Payment is doing precisely what the paper has agreed to do. Solvere dicitur cum aliquis fecit quod. facere promisit.
However, practically, the name of payment is often given to methods of release which are not ac companied by the performance of the thing prom ised. Restrinximus solutiones ad compensationem, ad novationem, ad delegationem, et ad numeratio nem.
In a more restricted sense, payment is the dis charge in money of a sum due. Numeratio est nummarice solutio. 5 Masse, Droit commercial 229. That a payment may extinguish a debt, it must be made by a person who . has a right to make it, to a person who ie entitled to receive it, in something proper to be received both as to kind and quality, and at the appointed place and time.
In the civil law, it is said, where payment is something to be done, it must be done by the debtor himself. If I hire a mechanic to build a steam engine for me, he cannot against my will substitute in his stead another workman. Where it is some thing to be given, the general rule is that it can be paid by any one, whether a co-obligor, or surety, or even a third person who has no interest ; except that in this last case subrogation will prevent the extinction of the debt as to the debtor, unless the payer at the time of payment act in the name of the debtor, or in his own name to release the debtor.
See SUBROGATION.
What constitutes payment. According to Comyns, payment by merchants must be made in money or by bill ; Coro. Dig. Mer chant (F).
Payment must be made in money, unless the obligation is, by the terms of the instru ment creating it, to be discharged' by other means. Congress has, by the constitution, power to decide what shall be a legal tender; that is, in what form the creditor may de mand his payment or must receive it if of fered; and congress has determined this by statutes. The same power is exercised by the government of all civilized countries. See LEGAL TENDER.
In England, Bank of England notes are legal tender. But the creditors may waive this right, and anything which he has as cepted as satisfaction for the debt will be considered as payment What the parties agree shall constitute payment, the law will adjudge to be payment ; Weir v. Hudnut, 115 Ind. 525, 18 N. E. 24.
The of the money current at the time fixed for performance of, and not at the time of making, a• contract, is the medium in which payment may be made; San Juan v. Gas Co., 195 U. S. 510, 25 Sup. Ct. 108, 49 L. Ed. 299, 1 Ann. Cas. 796. Although a coin is worn and cracked, yet if it still re tains evidence of being genuine, it is not deprived of its legal tender quality, and is Valid for payihent of a street car fare ; Cin cinnati Northern T. Co. v. Rosnagle, 84 Ohio St. 310, 95 N. E. 884, 35 L. R. A. (N. S.) 1030, Ann. Cas. 1912C, 639.
A debt contracted in a foreign country is payable in the currency of that country, and therefore, where the creditor sues in the United States, he is entitled to recover such sum in the money of the United States as equals the debt in the foreign country where it was payable; Grunwald v. Freese, 4 Cal. Unrep. 182, 34 Pac. 73. Where rent is payable in coin, its value is to be estimated at the market price of the coin .at the time and place of payment; Gilbreath v. Dilday, 152 Ill. 207, 38 N. E. 572. See GOLD.