78 N.C. 91 | N.C. | 1878
The case is before us upon the demurrer of the plaintiff to the answer of the defendant, from which the following facts appear: In February, 1870, the plaintiff recovered a judgment against one Kelly, as administrator of M. P. Morrison, and the defendant, as surety on the bond upon which the judgment was recovered. On 4 March, 1871, a compromise was entered into between the plaintiff and (92) Kelly, the said administrator, by which plaintiff agreed to and did receive, in satisfaction and discharge of his judgment for $636, a note on one Dowd for $406, dated 10 March, 1870, and payable six months after date, which note was a part of the assets of the estate of Kelly's intestate. This all occurred prior to Laws 1874-75, ch. 178, which therefore has no application to the case — at least we assume so, in the view we shall take of this action.
The question, then, which we are called upon to decide is, whether the acceptance by the judgment creditor of a promissory note, upon a third person in satisfaction of the judgment is not a discharge thereof, although the note so received is for a less amount than the judgment. That it is, has been expressly decided, both by the English and American courts. It was so held in Sibree v. Tripp, 15 M. and W., 22, where in delivering the opinion of the Court, Alderson, B., said: "It is undoubtedly true that payment of a portion of a liquidated demand in the same manner as the whole liquidated demand ought to be paid is payment *62 only in part; it is not one bargain, but two, namely, payment of part, and an agreement without consideration to give up the residue. The courts might very well have held the contrary, and have left the matter to the agreement of the parties; but undoubtedly the law is so settled. But if you substitute for a sum of money a piece of paper, or a stick of sealing wax, it is different, and the bargain may be carried out in its full integrity. A man may give in satisfaction of a debt of $100 a horse of the value of five pounds, but not five pounds. . . . Let us then apply these principles to the present case. If for money you give a negotiable security, you pay it in a different way. The security may be more or less; it is of uncertain value. That is a case falling within the rule I have referred to."
The illustrations put by Baron Alderson show the absurdity of the distinctions made by the solemn decisions of the courts, that a (93) money demand of $100 may be discharged by a stick of sealing wax of the value of sixpence, but not by $50, although received in satisfaction of the demand. The Court, therefore, in that case very justly questions the good sense of such technical distinctions, and says "the courts might well have held the contrary, and left the matter to the agreement of the parties." See Evans v. Raper,
PER CURIAM. Affirmed.
Cited: Koonce v. Russell,
NOTE — BYNUM, J. Since filing the above opinion, our attention has been called to the fact that by the terms of the compromise the defendants were to pay the costs then accrued, and that we have not rendered judgment therefor in this Court. It will be seen in the record that when execution was moved for before the clerk, while he refused to issue execution for the alleged balance of the judgment, he gave the plaintiff leave to issue the costs, which he declined to do. That judgment has been affirmed here. The plaintiff, then, can issue in the court below for the costs pursuant to the terms of the compromise. There was no point about this made in the argument here, and if there had been it could not have changed our judgment. *63
(94)
