3 N.H. 518 | Superior Court of New Hampshire | 1826
It is well settled, that a plea simply alleging the acceptance of a smaller sum of money, in satisfaction of a larger sum, is bad. 5 Coke's Rep. 117, Pinnel's case.—9 Coke's Rep. 80, Peytoe's case.—5 Johns. 386, Watkinson vs. Inglesby.—5 D & E 513, Kearslake vs. Morgan—2 D. & E. 24, Heathcote vs. Crookshanks.—1 Strange 425, Cumber vs. Wane.—5 East 230, Fitch vs. Sutton.—17 Johns. 169, Seymour vs. Minturn.—2 Johns 448, Harrison vs. Wilcox.
But it has always been held, that a plea alleging the payment of a less sum, before the day of payment stipulated ⅛ the contract, or at a different place, or the delivery of a specific article, in satisfaction, and an acceptance in satisface «ion by the plaintiff, was a good plea. 5 Co. 117, Pinnel's case.
So a plea alleging the payment of a less sum by a third person, and the acceptance of it by the plaintiff in satisfaction, is a good bar. 1 N. H. Rep. 279, Coburn vs. Gould.—11 East 390, Steinman vs. Magnus—2 D & E. 763, Cockshot vs. Bennett.
The reason, why the payment of a less sum by the debtor in satisfaction of a larger sum, cannot be adjudged a satisfaction, is, according to Lord Coks, “ because it appears to the “ judges, that by no possibility a lesser sum can be a satis- “ faction to the plaintiff for a greater sum.” But the gift of a chattel is good, because it may be intended to be mor© beneficial to the plaintiff, although of less value, than money.
It is very clear, that the plea in this case must be adjudged bad.
But the defendant may have leave to amend upon terms, and plead payment ; and the agreement to accept the $10, in satisfaction, may be left to the jury as evidence, that the rest has been paid. 5 Cranch 11, Henderson vs. Moore.
Leave to amend.