55 N.Y. 68 | NY | 1873
The judgment cannot be reversed upon the ground of a compromise between the parties. There was some evidence tending to show that the defendant doubted the correctness of the account rendered by the plaintiff, and *70 that, for the purpose of satisfying himself, asked to examine his books; and some tending to show that he denied the authority of his wife, by whom the goods had been purchased from the plaintiff, to purchase them upon his credit; but the referee having given judgment for the plaintiff, this court cannot assume that either of these facts was found by him. Besides, the evidence does not show any compromise by the parties, either of a demand which was disputed by the defendant, or for the discharge of an admitted indebtedness upon payment by the defendant of a less sum. The evidence proved, and the referee has found, that the defendant being indebted to the plaintiff, he proposed to give him the debt; that the latter said a gift would not stand in law; that the plaintiff said if the defendant would give him a dollar that would make it lawful, and then proposed if the defendant would give him a dollar he would give him the entire debt; whereupon the defendant did give the plaintiff a dollar, for the purpose of satisfying the whole debt, which the plaintiff accepted, and balanced his books as follows:
Wm. Burton, cr. by cash on account, $1 00 Gift, to balance account, 820 91
And that the plaintiff, for the purpose of carrying out the arrangement, gave the defendant a receipt, of which the following is a copy: "Received of William Burton one dollar, in full, to balance all book accounts, up to date, of whatever name and nature." The referee further found that it was the intention of both parties that the plaintiff, by such acts, so done, should and did give to the defendant the whole of said debt for one dollar; which sum was paid and received for the sole purpose of discharging the entire debt. From which facts the referee deduced the following legal conclusions: That there was no valid compromise or accord and satisfaction of the debt; that it was not a valid gift in law of the debt from the plaintiff to the defendant; that the plaintiff was entitled to recover of the defendant the amount of the debt, less the one dollar paid. The only construction of *71
the findings of fact is, that a gift of the entire debt, by the plaintiff to the defendant, was intended to be made, and was made, if the facts were sufficient to constitute a legal gift. No compromise of a disputed demand or of an admitted debt, upon payment of less than the amount, was talked of, agreed upon, or at all within the contemplation of the parties. That intention clearly was that the plaintiff should give the entire debt to the defendant, and that he should accept the same as a gift from him. The dollar was given, not in payment, but merely to satisfy defendant of its validity. The debt was then due, and the counsel of the respondent cites numerous cases where it has been held that a payment of a less sum upon a debt actually due cannot satisfy or discharge the entire debt, but only so much as is paid, although agreed to be received in satisfaction of the whole. The cases to this effect are uniform, from Fitch v.Sutton (5th East Rep., 230), to Ryan v. Ward (48 N.Y.,
204), Bunge v. Koop (id., 225). The reasons upon which these cases were determined were, that it was not good as an accord and satisfaction, as it was obvious that a smaller sum could not satisfy a greater; that, when the debt was due, payment of a part by the debtor was no consideration for a promise of the creditor to discharge the residue, as the creditor received nothing to which he was not entitled, and there being no consideration for any such agreement, it was a nude pact and void. To discharge the debt, it was held that there must be a release under seal. Although the reason why the use of a seal would effect a discharge while the same writing not sealed would not produce such result is rarely alluded to, yet it is perfectly obvious; at common law the seal was conclusive evidence of a sufficient consideration, and, hence, when attached to a release of a debt, was conclusive of a sufficient consideration therefor. This rule of evidence has been modified by statute to some extent. (2 R.S., 406, § 77.) This modification does not extend to releases. The question in this case is not whether there was an accord and satisfaction, or a valid compromise of the debt, but whether there was a *72
valid gift of it by the plaintiff to the defendant. Hence the authorities in regard to the two former do not apply. The counsel for the respondent insists that the defendant cannot avail himself of the latter for the reason that it was not set up in the answer; but no such objection was raised upon the trial. Had it then been taken it might have been obviated by procuring an amendment, if necessary. Omitting to make it upon trial was a waiver. The question whether there was a valid gift of the debt upon the facts proved and found is involved in the case and must be determined. A gift may be defined as a voluntary transfer of his property by one to another, without any consideration or compensation therefor. To make it valid, the transfer must be executed, for the reason that, there being no consideration therefor, no action will lie to enforce it. To consummate a gift there must be such a delivery by the donor to the donee as will place the property within the dominion and control of the latter, with intent to transfer the title to him. The question is, was there such a delivery of the debt by the plaintiff to the defendant, or what was equivalent thereto, in this case? InChampney v. Blanchard (
The judgment must be reversed and a new trial ordered, costs to abide the event.
All concur, except RAPALLO and FOLGER, JJ., not voting.
Judgment reversed.
