23 Barb. 546 | N.Y. Sup. Ct. | 1857
It is not material to the decision of this case, whether the contract which is the basis of the action, is technically an accord for the satisfaction of a debt or claim, and insufficient for that purpose before its actual execution, or a mere ordinary contract for the sale and purchase of chattels, not belonging to the former class of contracts. In either, view it is valid; the mutual stipulations constituting a sufficient consideration; and it not being obnoxious in any other respect to legal objection. An accord unperformed, consisting of mutual promises, and thus having a new consideration, is binding upon the parties, and an action will lie for a breach of it. (2 Parsons on Cont. 195. Cartright v. Cook, 3 Barn. & Adol. 701. Story on Cont. § 982.
The complaint is framed upon the theory that by the tender of performance by the plaintiff the title to the chattels vested in the defendant, and the plaintiff thereafter held the chattels as the defendant’s bailee, and that the plaintiff is entitled to recover the amount of the notes and for the keeping and care of the property. It is alleged in the complaint, that the largest note was transferred by the defendant before maturity, and that the plaintiff was sued upon it and paid the same to the holder, but the alleged transfer and suit are disproved. If this theory is sound, the notes were paid by the tender, and the only remedy of the plaintiff in respect to the notes—they remaining in the defendant’s hands—was to refuse to pay them again, and when sued upon them to set up the payment as a defense. He could not voluntarily pay the notes to the defendant and then in any mode recover back the amount paid. (Loomis v. Pulver, 9 John. 244. Egleston v. Knickerbacker, 6 Barb. 458. Sawyer v. Tappan, 14 N. Hamp. R. 352. Mitchell v. Sandford, 11 Alabama Rep. 695.) But I am satisfied the theory, upon the facts of the case, is not tenable. It does not appear that the plaintiff, after the tender, assuming that it is a case in which he was entitled by law to elect to treat the property as belonging to the defendant, made such an election; it is not proved that he so declared at the time of the tender, or so notified the defendant subsequently; he retained the property in his possession, for aught that appears, as his oum ; and before the commencement of this action, without any notice to the defendant, sold the same. (2 Kent's Com. 504. Sands v. Taylor, 5 John. 396, and cases there cited.) The evidence of the sale was proper, although not set up in this answer, upon the question of such an election ; particularly as it is alleged in the complaint, and denied in the answer, that the plaintiff had kept the property for the defendant up to the com
The complaint, as already stated, is not drawn with reference to this rule of damages, and it is obvious that the plaintiff at the trial did not seek to recover according to it., No evidence was given of the value of the propertyj whether it was worth less or more than the amount of the notes, does not appear. At most, therefore, the plaintiff could be allowed only nominal damages. But those I think he was entitled to. (Sedgwick on Dam. 47. 1 Chitty’s Pl. 296, Phil. ed. of 1828.) When a defendant answers, the court is not limited, in granting relief, to the relief particularly demanded in the complaint, but may
The judgment must be reversed, and a, new trial granted, with costs to abide the event.
T. R. Strong, Welles and Smith, Justices.]
