3 Wend. 66 | N.Y. Sup. Ct. | 1829
The plea is unquestionably good. It would have been good by way of accord and satisfaction, if no part of the original debt had been paid pri- or to tb® acceptance by the plaintiff of the last note. This was expressly decided in Boyd & Suydam v. Hitchcock, (20 Johns. R. 76.) It was there held that if a debtor gives his note endorsed by a third person as further security for apart of the debt, which is accepted by the creditor in full satisfaction, it is a valid discharge of the whole of the original debt; and it may be pleaded in bar as an accord and satisfaction. (6 Cranch, 253.) The additional security required by the creditor for a part of his debt, is a good consideration for the relinquishment of the residue. (Le Page v. McCrea, 1 Wend. 172. Kearslake v. Morgan, 5 T. R. 513.) This doctrine is admitted in Hughes v. Wheeler, (8 Cowen, 79,) and the distinction is there adverted to between the note of a third person and that of the debtor himself given for the original debt. The latter, it is there held, cannot be pleaded in bar of the original cause of action; but the plaintiff will not be permitted to recover on the original consideration, unless he produces the note upon the trial, or satisfactorily accounts for it. The authorities upon this point are all referred to in that case.
If the acceptance by the creditor of the note of a third person for a part of the original debt is a discharge of the whole, it must necessarily operate, as an extinguishment of the original consideration, where such note is given for the whole amount due, and is accepted in full satisfaction of it. Although the defendant still remains liable, the character of his responsibility is changed. He has entered into a new contract with his creditor, who, upon an adequate consideration, (the obtaining the note of a third person as an additional security for his debt,) has agreed to look to the defendant as endorser only, and to relinquish all claim upon him in any other character. He cannot be charged upon the original consideration.
Judgment for defendant upon the demurrer, with leave to plaintiff to reply on payament of costs.
