Davenport v. First Congregational Society

33 Wis. 387 | Wis. | 1873

Cole, J.

We are inclined to the opinion that the circuit court erred in excluding the testimony offered on the part of the defendant, by which it was proposed to prove that the plaintiff agreed, at a meeting of the trustees, to donate his bill for lumber to the defendant, on condition that J. L. Rood, executor of the estate of L. Rood, would donate and surrender the claim which the estate had against the defendant; that this proposition was accepted by the executor and the defendant; and that Rood, as executor, did then and there release and discharge the claim which the estate held against the defendant, before this proposition was withdrawn. Mow it is insisted on the part of the plaintiff, that there was no consideration whatever for his agreement to donate to the defendant his bill for lumber, and that his agreement, under the circumstances, was a mere nudum pactum, and void.

It seems to us, however, that if the facts offered to be proven should be established, the plaintiff would not be permitted to recover of the defendant his lumber bill. Eor the law is well settled, that if, on the faith of a creditor’s agreement to accept a part of his debt in full satisfaction, other creditors are induced to relinquish their demands on the debtor, the creditor who thus agrees cannot recover the balance of his debt, as it would be a fraud on the other creditors. We can not see why this principle of law is not strictly applicable to the case before us, because we must assume that the executor relinquished the claim of the estate against the defendant solely on the faith of the plaintiff’s promise to release the defendant from his claim for lumber. If he did, it would be contrary to good faith to allow the plaintiff now to recover that debt of the defendant. But, it was further objected, that, J. L. Kood had no legal right, as executor, to make a valid surrender of the claim of the estate to the defendant, and that the transaction was a breach of duty as executor, and will not support a promise.' We can not, however, assume that the executor has been acting in violation of his trust, and to the injury and loss of persons interested in the due administration of the assets. Prima facie the release of the executor is valid, and comes fully within his general power to dispose of the effects of the estate. Bor aught that appears, there may be no creditor or legatee to complain of this disposition of the debt against the defendant; or the executor may be abundantly able to make it good to the estate out of his own property. And until it is made to appear that the executor, by releasing the debt due the estate, has been wasting and misapplying the assets in violation of his duty in that regard, we can not assume that the consideration of plaintiff’s promise was the doing of an illegal act by the executor. We must presume, on the offer, that the agreement which was made was a valid undertaking, supported by a sufficient legal consideration, each creditor relinquishing his debt against the defendant, upon the faith that the other would do the same.

We do not think that there was any error in excluding the other evidence offered. It was proposed to show that the plaintiff agreed to surrender and discharge all his debts against tbe defendant, providing the defendant would, within, a reasonable time, pay its indebtedness to its former pastor; and that the defendant accepted the proposition, and, at a good deal of trouble and expense, raised money, and discharged that indebtedness. The only consideration for plaintiff’s promise, upon these facts, was the payment by the defendant of a debt justly-due. It might cause the defendant some trouble and inconvenience to pay its debts, but we are not aware of any principle of law which would make such payment alone a sufficient consideration fo£_a promise on the part of its creditor to relinquish his claim. Even if the payment had been made to the plaintiff himself of a part of an admitted debt, this alone would not support a promise on his part to accept such payment in satisfaction of the whole. Otto v. Klauber, 23 Wis., 472. The plaintiff’s undertaking, as set forth in the second offer, was a mere gratuitous engagement, and void at law.

For the error first noticed, we think the court properly set aside the verdict and granted a new trial; and the order appealed from must be affirmed.

By the Court. — Order affirmed.