Bonney v. Seely, 2 Wend. 481

Bonney v. Seely

2 Wend. 481 | N.Y. Sup. Ct. | 1829

By the Court, Savage, Ch. J.

It was decided in Ainslee v. Wilson, (7 Cowen, 668,) that the conveyance of land received in discharge of a money debt due from the plaintiff is, in judgment of law, to be considered the same thing as if the plaintiff had actually paid money. So in Randall v. Rich, (11 Mass. R. 498,) Parker, Ch. J. says, in a similar case, as to this point, “ The satisfaction of the execution ought to be considered as a payment of the debt in money ; and although land is taken, it is taken at money’s worth; and the debt which might have been exacted in money at all events has been discharged.” These cases settle the question that the payment of the debt of the defendants in land is sufficient to sustain the action for money paid.

*483In my opinion, also, the plaintiff should have been allowed to recover the costs. There was an agreement in writing to save him harmless. There was no fault on his part, as between these parties, in not paying the note. It was not expected that he would pay it; and he should have been indemnified by recovering his costs as part of the money paid.

The second point is, in my judgment, in favor of the defendants. If the plaintiff had paid the defendants’ debt by paying half the amount, can he recover the whole from the defendants 1 I think not. He is entitled to recover the amount paid, not the amount extinguished by that payment. In this there was an error.

A new trial is granted; the costs to abide the event.