24 Wend. 294 | N.Y. Sup. Ct. | 1840
By the Court,
The matter upon which the defendant relied as constituting a bar, ran through considerable time and was made up of divers circumstances. Those which followed the proposals were, in the language of some of the witnesses, all based upon them ; and each must be regarded, in estimating their operation, as parts of a single transaction. That was intended to be a general composition with the creditors of the defendant by which he should be released from his debts. Several objections were made in the course of the trial to single pieces of testimony at the time of their being offered, such as the proposals, because all the names except those of the plaintiffs below were stricken out; and the consent to Heath’s re-as
One difficulty now made is the want of a compliance with that clause of the proposals, which provided that they should be binding as soon as two-thirds of the total of business creditors would .accept them. This was no doubt a condition precedent, without a compliance with which the defence goes for nothing. It is supposed, by the plaintiffs’ counsel, that the condition could be fulfilled in no other way than by creditors to two-thirds in amount actually signing the written acceptance at the bottom. That was not done. The number and amount were a good deal enlarged by signatures to the paper, by which it was consented that Heath should reassign ; and finally, either by signing some paper or actual acceptance of securities under the proposals, and generally by one o’r the other act, a clear amount of more than two-thirds acceded. I am inclined to think that this was sufficient to satisfy the condition. That was not expressed to be a written acceptance ; nor is there any thing in the nature of these compositions requiring that all or perhaps any of the parts which go to make thém up, should be in writing. Their effect as a discharge is based not so much upon the sort of instruments or other acts by which they are effected, as upon their being an agreement upon sufficient consideration among' the several parties, the debtor on the one side, his creditors on the other, and the latter among themselves. They take up the matter and some of them incur a good deal of trouble and expense of time for the purpose of securing to themselves some part of a wasting wreck, to which is very commonly added the humane design of relieving an unfortunate debtor. Such at any rate is the frequent consequence ; and that is sufficient to conciliate a favorable interpretation at the hands of the common law. There need not, that I can see, be a seal, or any other formal solemnity. To do the whole by parol would be exceedingly loose, and often unavailable for want of adequate proof; but where the debts reside in simple contract, I see no reason, if clearly proved, why an oral Composition would not be equal to any oth- [ *298 ] er. The law, on finding a valid consideration, regards the act as a modification of, or substitution for, the various contracts on which the debts are due to the creditors ; a cutting of them down, aud renewal for good consideration in a qualified form. This is sometimes based upon a sim
The objection, therefore, that here was not a technical release [ *299 ] by the plaintiffs, and no technical accord and satisfaction, *is wide of the case if either are to be taken as parties to the composition ; and as accepting a satisfaction within the meaning of that term when applied to such* a proceeding. This brings us to the question whether such a satisfaction is predicable of these plaintiffs. As between them and the defendant alone, there could be no satisfaction short of actual payment to the full extent of the debt, or the acceptance of a collateral thing. A mere accord is no bar, even though satisfaction be tendered. This was holden by Heathcote v. Crookshanks, 2 T. R. 24, even where all the creditors came in and were made parties pursuant to a general composition. There the composition money was actually tendered to the plaintiff; but even this was holden not to be sufficient, because it was not expressly pleaded that the plaintiff’s agreement to accept it was in consideration of all the creditors coming in. Buller, J. admitted, that if the latter had been averred, the accord and tender might have been a bar. That I take to be settled by the subsequent cases, and to constitute the sole distinction between a private accord of the immediate parties, and one which is common to
The plaintiffs below began heartily and plainly. They signed both the written acceptance of the original proposals, and the as- [ ''300 ] sent to Heath’s reassignment. But they stopped before the actual reassignment could have been executed, at least with the intended effect; for it undoubtedly required the assent of all the defendant’s creditors who had stood in the relation of eestuis que trust under the assignment. These had not all executed when the plaintiffs, becoming dissatisfied, struck their names from the consent to the reassignment, with the privity and virtual assent of the defendant; for he agreed in writing that they should not be considered bound by their signature. As it regarded himself, he might do that without seal; for the signatures to the reassignment were not yet all obtained ; nor was the complement full when the names were actually expunged. Bonnefoux, who held the paper, was then actually in pursuit of signatures. Hothing was ever done after this by way of consummation, either on the side of the plaintiffs or defendant. The debt has not been paid, nor have the composition notes been given or tendered, nor any goods offered to the plaintiffs. In short, both they and the defendant discontinued all thoughts of going on to a discharge of this debt. Could the former have got hold of the original proposals, and the defendant had consented to such an act, they would doubtless have struck their names from them at the same stage of the proceeding. For aught I see, they had a right thus to withdraw, and refuse finally to discharge their large debt on the security offered for only part. To confirm their intention, they made an independent proposition to take certain specified security for fifty per cent. That was declined. On the whole, for reasons satisfactory to themselves, they did, about the time of Heath’s re-assignment, manifest .as distinct a determination to withdraw themselves from the arrangement, as they had originally shewn to engage in it. This they appear to have done openly, by the consent of the defend-
The cases to which I have before adverted will, I think, be found to contain the enumeration of every possible principle on which the creditor’s obligations of forbearance based on these composition arrangements can be said to rest. In sketching what I consider the result of the cases, I have not extenuated those obligations. Looking at them as between the debtor and creditor, they would, as we have seen, depend on nothing but an accord, which, till executed, binds not. ‘Relatively to creditors, the agreement is binding per se, provided it be followed up; and the law will insist on its execution in good faith, setting aside all secret terms made by the creditor with the debtor, more favorable to the former than is allowed to the other creditors ; and this on the principle of maintaining integrity towards them and humanity to the debtor. Abbott C. J. in Turner v. Hoole, ut supra. Alsager v. Spalding, 4 Bing. N. C. 407.
But I have met with no case which denies to the creditor an open withdrawal of his name, with the consent of the debtor, as was practiced here. In saying this, the court labors under the disadvantage of being left to their own unassisted means of research ; for not a solitary case or book was cited by either of the learned counsel on the argument. This was wrong, for no doubt the subject is much more familiar in the place of their residence, and where these parties reside, and where the cause was tried, than in any other part of the state. I can only say, I have bestowed on the question what-attention and research my time has allowed. After all, the debtor is the man most interested in seeing that the arrangement be carried out. Both he and any one of the creditors have, I think, room at any stage of its progress, for an honest open retraction, such as they mutually stipulated for here, and mutually executed by their positive acts. There is no fraud to [ *802 ] redress. Independently of that, *in all the cases I have seen where the creditor was holden to have been bound, he has arbitrarily refused to go on, without the consent of the debtor, after his conduct might be deemed to have drawn in other creditors to execute a deed of composition, and all was arranged, and strict performance finally tendered to him according to the terms which he had proposed. The strongest case is
It follows that the court below erred in awarding a nonsuit. The judgment must be reversed, and a venire de novo go from that court; the costs to abide the event.