3 Barb. Ch. 621 | New York Court of Chancery | 1846
The charge in the bill, upon the subject of the agreement to discharge the acceptors, is supported by the affidavit of Benson, and by the letter of the president of the bank, with the answer to the same. The answer of White denies that there was any usury in the draft upon which the judgment was obtained; though he declines saying any thing as to the alleged usury in the draft which was paid by the acceptors. But he alleges that the discounting of the two bills by him were entirely separate and distinct transactions. This is a sufficient denial of the usury, for the purposes of this motion. It is not necessary therefore to inquire, in this stage of the suit, what interest White had in the judgment; as the guarantor of Horace White, who received the draft from him and endorsed it to the bank.
Upon the argument of this motion I had some doubts whether this bill was properly framed to entitle the complainant to relief opon the ground that the liability of the complainant was discharged by the agreement to release the acceptors. On further examination, however, I see nothing to prevent him from having relief on that ground, in case he does not succeed in showing that the draft upon which the judgment was recovered was usurious, and that the bank was not in fact a bona fide holder thereof. For though Benson & Lefferts were mere accommomodation acceptors for Bissell, they were, as between the endorsers and themselves, primarily liable for the payment of both drafts. And if the endorsee paid either of the drafts to the holder thereof, he would be entitled to be subrogated to the rights of such holder, as against the acceptors. The letter of St. John, the president of the bank, contains a distinct proposition to discharge the acceptors from liability upon one of the drafts, on their giving security for the payment of the other. And the answer of Benson shows that the proposition was accepted. Benson’s affidavit also shows it was subsequently carnee1 into effect, by
An agreement to accept a part, of an admitted debt, in satisfaction of the whole, is not sufficient to discharge the debtor from the payment of the residue. But if the debtor, in addition to the-agreement to pay part of the debt, gives to the creditor any thing which in judgment of law can be considered a benefit to him, and the creditor accepts it as a. satisfaction of the whole liability of the debtor, it is a good accord and satisfaction to release the debtor from further liability, (Forsyth on Comp. 17.) And the former supreme court of this state decided, in the case of Boyd v. Hitchcock, (20 John. Rep. 76,) that, where a debtor gives his note, endorsed by a third person, as further, security for a part of his debt, and the same is accepted by the creditor in full satisfaction of his claim against such debtor for the whole, it is a valid discharge of the debt; and may be pleaded in bar asan accord and satisfaction. Such seems to be the case in respect to the acceptors of the bill on which this judgment was recovered; as appears from the affidavit of Benson and the letter of the president of the bank.
The defendant Dickinson, as the assignee of the judgment, is in no better situation than the bank was previous to the. assignment. And as the bank could not in equity enforce this judgment against the endorser after it had voluntarily discharged the acceptors of the draft, by the acceptance of. the endorsed notes for the other draft in discharge of their liability for both drafts, the complainant will be entitled to a perpetual injunction restraining the assignee of the. judgment from enr forcing the same, against him.
The injunction must therefore be retained' until the. hearing, and the defendants who have made this application, must pay to the complainant the costs of opposing.the same.
