14 R.I. 322 | R.I. | 1884
This action was tried in the Court of Common Pleas and comes here on exceptions. It is assumpsit for $300 for services rendered. The defendant pleaded first the general issue, andsecond a plea of set off. The plea in set off sets up an indebtedness of the plaintiff to the defendant of $2,000 by promissory note and of $1,500 claimed under the common counts. The note is described as a note dated May 17, 1880, subscribed "George R. Bennett, Treas.," payable to William F. Brooks, Agt. P.P. Co.," four months after date, and indorsed to the defendant by Brooks by the signature, "Providence Pottery Co., Wm. F. Brooks Agt." To the plea in set off the plaintiff pleaded the following replication, to wit: "And the plaintiff, for further replication, here by leave of the court says, precludi non, because he says that before the bringing of his said action, to wit: on the day of A.D. 1880, the said defendant in consideration that one George A. Burrough undertook and promised with the assistance of the plaintiff to carry on the pottery business of the Providence Pottery Works, then owned by the defendant, and to pay to the defendant from the profits of said business the indebtedness of said company to said defendant, including the claims mentioned in said plea in set off amounting to about ($2,500) twenty five hundred dollars, and in consideration that the plaintiff would take charge of said business and manage the same and draw therefrom only his living expenses, undertook and promised *323 to accept and did accept said agreement, promises, and contract in place of said former claims mentioned in said plea in set off, and in full satisfaction and discharge of the plaintiff's liability thereon. And the plaintiff says that the said Burrough did thereupon, with the assistance of the plaintiff, carry on the pottery business of said company, and the plaintiff thereupon took charge of said business and managed the same," c. To this replication the defendant demurred. The court below overruled the demurrer and the defendant excepted.
The replication is deficient in precision and certainty, and is otherwise open to criticism; but we understand that what is pleaded or is meant to be pleaded in it is, that the claims alleged in set off have been discharged or satisfied by force of an agreement between the defendant and Burrough, in which Burrough undertook and promised the defendant that he would pay said claims out of the profits of a certain pottery business, to be carried on by him with the assistance of the plaintiff, the plaintiff to be the manager, and in which the defendant agreed, in consideration of said promise, to accept said promise of payment from Burrough, as aforesaid, in lieu of payment, as he was previously entitled to it, from the plaintiff, and in full discharge and satisfaction of said claims. The replication also states that Burrough and the plaintiff have carried on the pottery business, but it does not state that Burrough has ever paid anything on account of the claims, or that any profits have accrued from which he could have paid anything. The question then is whether the agreement, without more, can be held to have satisfied the claims pleaded in set off.
The defendant contends that the agreement is without consideration and therefore void. We think the agreement is not without consideration if the result of it is to discharge the plaintiff; for in that event, although Burrough may derive no advantage from it, the defendant receives a detriment, in that he loses his claim on the plaintiff. The question, therefore, recurs again whether the agreement can be held to operate as a discharge of the plaintiff or as a satisfaction of the defendant's claims against him. The defendant contends that the agreement cannot operate by way of discharge or satisfaction because it is the agreement of a stranger. There are cases which hold that an accord and satisfaction *324
by a stranger is not a good bar. Grymes v. Blofield, Cro. Eliz. 541; Edgecombe v. Rodd, 5 East, 294; Clow v. Borst Best, 6 Johns. Rep. 37; Blum v. Hartman, 3 Daly, 47;Daniels v. Hallenbeck, 19 Wend. 408. But the better doctrine is that satisfaction by a stranger, made for or on account of the debtor and adopted by the debtor, is good. Jones v.Broadhurst, 9 C.B. 173, 193; Belshaw v. Bush, 11 C.B. 190, 207; Simpson v. Egginton, 10 Exch. Rep. 845; Webster v.Wyser, 1 Stew. 184; Harrison v. Hicks, 1 Port. 423;Leavitt v. Morrow,
The defendant contends that the replication is bad because no satisfaction is alleged except the promise of Burrough, which he contends is without consideration. There is a distinction between an agreement which is itself satisfaction, and one which is to become satisfaction when performed. The former satisfies the debt; the creditor getting the agreement in lieu of the debt.Whitney v. Cook,
We think, therefore, disregarding all such defects of the replication as have not been objected to by the defendant, that the replication must be held to be sufficient and the demurrer overruled.
Exceptions overruled.