26 Ky. 195 | Ky. Ct. App. | 1830
delivered the opinion of the Court.
The bank instituted an action of debt,against the defendants, and William Wilson, upon a - note for $400, dated 12th April, 1822, negotiable at,, the Somerset branch, and payable at.one-hundred and twenty days. The suit abated, as to Wilson, by the. sheriff’s return.
The defendants, the Letchers, plead, that “on the 12th August, 1822, in the .regular course of the business and transactions of said bank, the note, in the declaration set forth, .being then due, and payable, William Wilson, ‘the principal in said note, offered and tendered, to the said bank, in full.satisfaction and discharge thereof, another note, due at four months, with the names of Joseph P. Letcher, @nd Benjamin Letcher, thereto written and subscribed as securities, for the sum of $>384, with the sum. of.
When this suit was instituted, the note mentioned in the plea, had become due. The names of the same persons, and no other, were to this note, as obli-gors, which are to the note, upon which suit has been brought. Can the subsequent note (supposing it to be properly executed by the paties) constitute a satisfaction of any part of the first note, and can it be plead as such. It cannot, if the the doctrines of the law, as laid down in Bacon, title, Accord and Satisfaction, sustained by the numerous authorities referred to, are to prevail.
It is expressly said, that “one obligation, given in satisfaction for another, is no discharge, whether grounded upon an .accord or not.’ A payment of a part, and giving a new note, for the residue, cannot mend it, unless the payment had been made, and new note given,, before the first became due; in which case, there.might be advantage to the obligee, which ought tp support the satisfaction. But, when the first note is due, and the whole payable, there is no advantage, in legal contemplation, to the obligee, in receiving part, and postponing the the. payment of the balauce.
That all pleas of accord and satisfaction, must shew some advantage to the obligee, is well settled, npt only in Bacon, under the above title, but is fully recognized by this court, in the casCof the Commonwealth, for Johnson vs. Miller, &c. V. Mon. 211. blew notes, which vary the original contract, and to which there are new obligors, may present such advantages, as will sustain a plea of accord and satisfaction. At least wp will not say, they may not, and
Applying the foregoing principles, to the present case, we aré of opinion, the plea is bad as a plea of accord find satisfaction. But, even if the money paid, and a new note properly .executed, for the bal-anee due, could ’ constitute the foundation of a good plea of accord and satisfaction, still, the present plea is defective, in not averring that the note, relied on in the plea, was duly executed by Wilson, and the
We are of opinion, therefore, that the circuit court erred in overruling the demurrer to the plea.
Wherefore, the judgment of the circuit court is reversed, and the cause remanded, with directions, to sustain the demurrer, and for new proceedings, to ■ commence at that point, not inconsistent with this opinion.
The plaintiff in error, must recover costs.-