85 Vt. 249 | Vt. | 1911
The partnership which had existed between the plaintiff and defendant was dissolved in 1908. No settlement of their partnership deal was effected until February 22, 1909,. when,' as the plaintiff’s evidence tended to show, the sum of one hundred and fifty dollars was agreed upon by them as the amount due the plaintiff from the defendant. At the same time and as a part of this settlement it was agreed that the defendant' should assign to the plaintiff an account against Geo. P. Barrett & Co., which he assured the plaintiff would amount to more than the sum named, and that the plaintiff should accept such assignment in full satisfaction and discharge of this balance so agreed upon. Accordingly, the defendant gave the plaintiff an order on Barrett & Co., therein directing that firm to pay to the plaintiff the amount due the defendant on account. And the plaintiff gave the defendant a writing therein agreeing to accept this account in full settlement of
Without returning or offering to return the order referred to, the plaintiff brought this action of assumpsit, and claimed at the trial to recover the balance of $150 as upon an account stated. The defendant pleaded the general issue with a notice setting up the order as an accord and satisfaction. The plaintiff claimed the right to recover upon the account stated without regard to the alleged accord and satisfaction, on the ground that he was induced to accept the order by the fraudulent representaions of the defendant, — and this was one of the issues tried out before the jury.
It was conceded at the trial that the plaintiff had never-returned the order, nor offered to do so until just as the trial began, and that it was then refused by the defendant.
At the close of the plaintiff’s evidence, and again at the close of all the evidence, the defendant moved for a verdict on the ground that, in view of this failure to return the order, this action could not be maintained.
It was said by this Court in Brainard v. Vandyke, 71 Vt. 359, 45 Atl. 758, that it may be taken as settled in this State that when one has received anything of value in settlement of a right of action, the contract of settlement, although obtained by duress and fraud, is a bar to a recovery at law so-long as it is not rescinded by an offer to return the consideration, in so far as it lies in the power of him who would rescind to do-so. But that if the thing received as a consideration for the release is of no value at law, a rescission may be effected on the part of him who has the right, by notifying the other party that he repudiates the settlement, or by instituting legal proceedings against the other party upon the original cause of action. And it is held that in order to obviate this necessity of restoration the thing received must be without value to either party. Bas
In Northampton Nat. Bank v. Smith, 169 Mass. 281, 61 Am. St. Rep. 283, 47 N. E. 1009, the plaintiff by mistake paid the defendant a certain check of a third person after payment thereof had been stopped by the maker, and sued to recover the amount, without returning the check or offering to do so. It was held that the check, if unpaid, belonged to the defendant .and would be useful and valuable to him as an aid in establishing his claim against the signer, and that there could be no recovery.
In Spencer v. St. Clair, 57 N. H. 9, and Crossen v. Murphy, 31 Ore. 114, 49 Pac. 858, it is held that a note must be returned .before suit on the original cause of action though the maker be insolvent.
It comes to this, then: If this order is a thing of value, •either to the plaintiff or to the defendant, its return, or what amounts to that, was a necessary pre-requisite to a rescission of the contract of settlement; — without which rescission no action can be sustained upon the account stated. If the order is without value to either party, the right of rescission did not depend upon its return.
When a creditor draws an order upon his debtor in favor of third person for the amount of the debt, and the latter gives the debtor notice thereof, it operates as an equitable assignment of the debt, though the debtor neither pays nor accepts the order. And in such circumstances, neither the debtor nor the assignor can defeat the rights of the assignee. Blin v. Pierce, 20 Vt. 25.
We are not called upon to say how it would be if there was in fact no debt for the order to act upon, or even how it would be if that question was in dispute; for here the evidence was uncontradicted to the effect that this order transferred an account of at least $34.90. With the order outstanding, this amount, at least, could only be collected for the benefit of the plaintiff. No arrangement between the debtor and the defendant co-uld defeat his rights. Until he surrendered the order, he alone could release this debt. Whether the defendant considered it good or otherwise when he gave it is immaterial. It operated as an equitable assignment of an account, the amount which only was uncertain. The order was of value to the
Without a restoration of this order, though its acceptance was induced by fraud, the accord and satisfaction evidenced by the receipt hereinbefore referred to was binding and effective,, and a verdict should have been ordered for the defendant.
Judgment reversed and judgment for the defendant to recover■ Ms costs.
