| Miss. | Apr 15, 1855
delivered the opinion of the court.
The plaintiffs below, Dennis Perkins & Co., brought a suit in the circuit court of Hinds county, upon a promissory note made by the defendants,' for the sum of $1,050, dated Jackson, May 12, 1850, and payable twelve months after date.
The defendants introduced on the trial the deposition of E. M. Avery, for the purpose of proving that Dennis Perkins & Co. had agreed in the early part of the summer of 1851 to accept and receive in full payment of their entire indebtedness, amounting to over $2,000 against Jones, the sum of $1,500, to be paid to the plaintiffs in the city of New York. f Witness proves that previous to leaving Jackson for New York, he was authorized by Jones to settle with the plaintiffs according to the above understanding, and had in New York a sufficient amount of funds belonging to Jones to settle according to an understanding there had with Perkins, one of the plaintiffs, that he would have so settled but for the fact that the plaintiffs there, for the first time, withdrew the proposition and attached the funds in his.hands belonging to Jones; that said funds, to the amount of $1,221.40, were used in paying a note of plaintiffs against Jones, falling due in 1850.
It is true that an agreement to accept a less sum, or the actual acceptance at the place of payment, by the terms of the original contract, of a less sum than the amount due, is no defence to the debtor. It is, however, said that this rule is entirely “ technical, and not very well supported by reasons.” 14 Wendell, 119. Hence we infer that it requires'but a very slight consideration to support such contracts. While the general rule is as above stated, that a payment of a less sum than the amount due at the place of payment will not discharge the contract, yet if such payment is made, or to be made at a place different from that appointed by the contract, this is a sufficient consideration. Where no place of performance is specified by the contract, the presumption of law is, that it is to be performed where it was made. The note in this case was made at Jackson, Miss., and the presumption of law is that it was to be paid there, as no other place of payment is named. The debtor, according to the authorities, was not required to go out of’the State to make payment. 25 Wendell, 406. The contract to pay $1,500 in discharge of a sum exceeding $2,000, was to be performed in New York. This was a sufficient consideration' to bind the plaintiffs, if an offer was made to perform the contract in New York before notice of the withdrawal of the proposition reached the defendant in Mississippi. After he had employed an agent to transact his business, and had incurred the risk, trouble, and expense of sending funds to New York, in pursuance of the agreement, it was too late for the plaintiffs to withdraw the proposition and to decline a compliance on their part.
It appears, at least the inference is very clear to that effect, that very soon after learning from the agent that he was prepared to carry out Jones’s contract, the plaintiffs attached the funds in his hands and abandoned the agreement. This conduct might have warranted the jury in coming to the conclusion that the proposition to take the -$1,500 in payment of the two debts, was merely intended as a stratagem to induce the debtor to send his funds to New York, where they could be attached by the plaintiffs, and appropriated exclusively to the
We are, therefore, of opinion that the court erred in rejecting the evidence.
Judgment reversed, and venire de novo awarded.
A petition for a reargument was filed in this case by the counsel for appellee, but the court refused to grant a reargument.