110 Mass. 202 | Mass. | 1872
The note constituted a valid debt against James B. Blake for its full amount; and the holder was entitled to prove it for that amount against his estate; unless the written agreement furnished a defence in whole or in part.
The agreement to accept a part in satisfaction of the whole, so long as it remains executory, will not operate either as payment, satisfaction or discharge. Clifton v. Litchfield, 106 Mass. 34. The instrument, being under seal, may operate as a discharge if its terms so provide; but not otherwise. It contains no words of present discharge. The only provision for a future discharge is, that upon payment in full of the lesser sum, stipulated to be paid in lieu of the whole, “ the said note shall then be cancelled and surrendered.”
Until that condition is complied with, the original debt remains unaffected by the executory agreement for a discharge.
It does not avail that the debtor made all the payments that were required to be made, up to the time of his death. The instrument cannot take effect as a defeasance,- of which the administrator can take advantage in any other mode or upon any other condition than that which is provided by its own terms.
As the case now stands the holder of the note is entitled to have it allowed for its full amount, deducting only such payments as have been made on account of the debt.
Judgment accordingly.
