Latapee v. Pecholier

14 F. Cas. 1167 | U.S. Circuit Court for the District of Pennsylvania | 1808

WASHINGTON, Circuit Justice.

The objection is premature at present. We do not know what the agreement was, or whether it was executed or not. The evidence was then given.

Dallas, for defendant, contended that the plea of duress was, in this case, a complete defence against the plaintiff’s recovery on these notes. The defendant having been discharged under the insolvent laws of this state, could not be legally arrested for the same debts in Delaware.

BY THE COURT. The arrest in Delaware being legal; by the laws of that state, a court of this state could not consider it unlawful, although it would have been unlawful, had it been made in this state. The plea of duress, therefore, cannot be supported.

Secondly, Mr. Dallas contended, that the suit was discontinued in consequence of the agreement at Duplessis’s office; but, at any rate, that agreement having been executed by the defendant, as far as it was in his power, is a satisfaction of the notes given in Delaware, and may be given in evidence, under the plea of payment, with leave; for any de-fence may be taken under this plea, which shows that the plaintiff, ex equo et bono, ought not to recover. The defendant paid the money, which, by the agreement, he stipulated to pay; and the refusal of the plaintiff to accept it, unless the defendant would deliver him notes, with an endorser, to be named by the plaintiff, (which he was not bound to do,) dispensed with the necessity of a regular tender of notes.

Levy and Philips, for plaintiff, contended, that the defendant having pleaded to the action, it was too late to insist upon the discontinuance of the suit; that the defendant had not made such an offer to perform his part of the agreement, as he was bound to make; and that if he had done so, still a promise of a lesser sum, though the security be bettered, and though it be accepted, is not a satisfaction. Were this a suit in equity, the court would not assist the defendant, without his offering to pay the whole six hundred dollars.

Dallas, in reply, stated a new point, viz., that the plaintiff could not recover, without first delivering up the defendant’s endorsements, which formed the consideration of the notes in suit, and which may hereafter come against him.

WASHINGTON, Circuit Justice

(charging jury). The defence is, first to the action, and secondly to the claim, on which the action is founded. It is said that this suit was once discontinued, and could not afterwards be replaced on the docket, without the assent of the parties; if not so, still that the debt created by-those notes, was discharged by the subsequent agreement, which took place at Duplessis’s office. The first defence cannot be noticed under either of the pleas in the cause, being inconsistent with them. This amounts to saying that there is no cause in court, and the pleas admit there is, but controvert the right of the plaintiff to recover in it. The defendant ought to have taken advantage of the discontinuance at an earlier period, and in a different way. By appearing and making defence, he waives the objection. The second ground of defence is consistent with the plea of payment, if the defence itself be good. This is the way in which we understand the contract made at Duplessis’s office, according to Ms evidence. That the plaintiff agreed to receive of the defendant six hundred dollars, instead of the sixteen hundred dollars which he owed Mm, upon condition that one hundred and twenty-two dollars of the money was paid to Duplessis for the plaintiff, in two days; and the balance in a note, to be drawn payable to Duplessis, who was to endorse, without recourse, but which was to be endorsed by some person, to be named By the plaintiff. As to this second endorser, the evidence being differently understood by the defendant’s counsel, and by the district judge, I shall consider the case both ways. If my understanding of the agreement be correct, then it is the opinion of the court, that the defendant has not shown either an actual or a technical performance on his part. He ought to have offered the notes signed, and endorsed by Duplessis, and tendered himself ready to have it endorsed by such a person as the plaintiff should nominate. If he seeks to make his offer to perform equivalent to performance, it lies upon him to show that he did all that was in his power, or offered to do it. It is said that the plaintiff dispensed with the offer, as I have stated it, by refusing to take the money, unless the note was endorsed. But, if I take the agreement correctly, had he not a right to make the objection; and when made, ought not the defendant to have proceeded as far as he could? Certainly he ought. But, secondly, if by the agreement a responsible endorser was not to be given, then where is the ground even of equity, for considering this agreement a discharge of the prior debt? What is it, but an executory agreement, induced by no consideration whatever, to take six hundred dollars in lieu of sixteen hundred dollars? and would equity enforce such a contract? Surely not. I speak of the equity of the case, because it is laid down, that under the plea of payment with leave, evidence may be given, which shows that ex equo et bono, the debt claimed should not be paid. I understand the law to mean, that if the debt has, in whole or in part, been actually paid, or if by any means it has been extinguished, as by a contract of a superior nature; or has been released; or if the debt be not in conscience due; or has by some means been satisfied, so that it would be un-conscientious in the plaintiff to demand it; suc-li evidence may be given. But this debt has not been paid, or released, or extinguished, by a contract superior in dignity to the original debt, which was once fairly due; it has not been satisfied; nor would the agreement, if executed, have amounted to a satisfaction, being for a less sum, without even the consideration of bettering the plaintiff’s security. Ex aequo et bono, then, this debt is still due; and nothing has occurred, actually or technically, to discharge it.

The last point is susceptible of more argument. in favour of the defendant. The paper which had produced the liability of the defendant, and in discharge of which the notes in question were given, is negotiable; and if it has been transferred by the plaintiff, the defendant may hereafter be called upon to pay it, by a bona fide assignee, without notice; against which claim, the payment of these notes would not protect Mm. But I think the agreement of the parties, made at the time when these notes were given, precludes the defendant from making this objection; at any rate, until he is ready to pay the money. Though there is no reason, in point of law, why judgment should not be given for the plaintiff, still the court would have it in its power to protect the defendant against the supposed danger of being twice made liable; by staying execution until the note is produced, or by enjoining the judgment. On this latter point, my brother justice doubts, whether the objection does not go to the right of the plaintiff to recover in this action, until the note is produced. The plaintiff’s counsel undertook to produce the note before the money should be paid; and to give any security to indemnify the defendant against all other claims.

Verdict for plaintiff.