Acker & Chapman v. J. D. & D. A. Phœnix, 4 Paige Ch. 305

Acker & Chapman v. J. D. & D. A. Phœnix

4 Paige Ch. 305 | New York Court of Chancery | 1834

The Chancellor.

The deed of composition signed by the defendants in this case is as explicit as language can make it, that it shall not be binding on any of the creditors who have executed the same, until all and eveiy of the creditors of the complainants shall have subscribed and sealed it. But these complainants are now attempting to vary the effect of this written agreement in a very essential point, by an allegation that there was a parol understanding, at the time of *308the execution of the deed, that this provision, that all the creditors should join therein, was only to extend to a particular class of creditors; and that another class, who are sometimes called confidential creditors, were not to join in the composition deed.' This is wholly inadmissible; and as the complainants admit that all their creditors did not execute the deed, they have no defence, either at law or in equity, against the payment of the whole of the defendants’ debts.

Again; even if the written instrument could be varied by parol proof, the complainants are not entitled to relief here; as the agreement by the defendants to accept a part of their debt in satisfaction of the whole, was entirely without consideration. And the court of chancery will not aid a party who is seeking the specific performance of a mere voluntary agreement, which is neither founded on a good or a valuable consideration. (Minturn v. Seymour, 4 John. Ch. Rep. 497. Banks v. May’s heirs, 3 A. R. Marsh. Rep. 436.) It is well.settled that the payment, by the debtor, of a less sum of money than the real debt forms no valid consideration for an agreement to discharge the residue. And such an agreement will be no satisfaction of the larger sum, unless it is under seal; which imports a consideration. (Harrison v. Close, 2 John. Rep. 448.) In this case the composition deed is not executed by the complainants. Therefore there is not even an agreement, on their part, to secure the payment of the amount which was to be received as a composition. If there was a valid agreement to discontinue the suits, which I think there was not, the remedy of the complainants was by an application to the supreme court, to set aside the judgments for irregularity.

The demurrer is allowed; and the bill must be dismissed, with costs.