Marshall v. Bullard

114 Iowa 462 | Iowa | 1901

Ladd, J.

It may be conceded that John A. Bullard became the equitable owner, at least, of the judgment, as the amount thereof was paid to the judgment plaintiff’s attorney upon the express understanding that it should be assigned to him. Thereafter he caused an execution to issue, and directed the sheriff to levy upon the property of plaintiff, one of the judgment defendants; but when the sheriff was about to do so Bullard told Marshall if he would raise and pay one-half the judgment he would release him therefrom, and would' give the other to his (Bullard’s) mother, the other judgment defendant. Possibly the word “release” may noi have been used, but such was clearly the understanding of the parties, though denied by Bullard. The latter knew at the time that Marshall had no property other than 4 horses and 14 pigs, and that this was inadequate to satisfy the debt. The design was evidently that he should raise money by procuring it from another, he accordingly consulted Willard Bullard, advising him fully of the circumstances. It should here be noted the debt was that of Mrs. Bullard, and the liability of Marshall resulted from signing with her as surety. Upon being informed of the situation, she executed a chattel mortgage to Willard Bullard, securing him the payment of the money which he promised to procure. The latter, in the evening of the same day, went to see J'ohn A. Bullard, and said, “Marshall tells me you will settle that judgment in full if he will raise you $320,” and was answered, “I did tell him I would;” and he was then informed Willard Bullard would help Marshall to the money, and that his (Bullard’s) mother would secure him therefor by a chattel mortgage on her personal property. Willard Bullard borrowed the necessary amount from one McCown, executing his individual note therefor, and paid the $320 to the sheriff. This was done in reliance on John A. Bullard’s agreement to release the judgment as against Marshall. The note to Mc-Cown was afterwards paid by Mrs. Bullard. Shortly after the above payment, Marshall and John Bullard each by agreement paid one-half of the sheriff’s costs. Being after the close of the transaction, this cannot be regarded as of controlling importance. But see Harper v. Graham, 20 Ohio, 106; Baum v. Buntyn, 62 Miss. 110; Mitchell v. Wheaton, 46 Conn. 315 (33 Am. Rep. 24).

I. The rule that an agreement to accept part in satisfaction of the whole of a liquidated demand is invalid because without consideration has been declared too many times, in this state to permit of reconsideration. Keller v. Strong, 104 Iowa, 585; Bryan v. Brazil, 52 Iowa, 350; Works v. Hershey, 35 Iowa, 340; Myers v. Byington, 34 Iowa, 205; Rea v. Owens, 37 Iowa, 262; Sullivan v. Finn, 4 G. Greene, 544. But see Clayton v. Clark, 74 Miss. 499 (21 South. Rep. 565, 22 South. Rep. 189, 37 L. R. A. 771, 60 Am. St. Rep. 521), an interesting decision to the contrary. It is applicable to judgment debts. Deland v. Hiett, 27 Cal. 611 (87 Am. Dec. 102) ; Fletcher v. Wurgler, 97 Ind. 223; Coblentz v. Manufacturing Co., 40 Ark. 180. If, however, such an agreement is supported by any new consideration, though insignificant, or technical merely, if valuable, it will be upheld. Thus, if a part is to be and is paid before due, or at a place other than that at which the obligor was legally required to pay, or if payment is made in property, no matter what its value, or by the debtor in composition with his creditors generally, in which they agree to accept less than their demands, the consideration is held to be sufficient. Boyd v. Moats, 75 Iowa, 151; Stoutenberg v. Huisman, 93 Iowa, 213; Jones v. Perkins, 29 Miss. 139 (64 Am. Dec. 136, and note) ; White v. Kuntz, 107 N. Y. 518 (14 N. E. Rep. 423, 1 Am. St. Rep. 886) ; Very v. Levy, 13 How. 345 (14 L. Ed. 173). See cases collected in note to Fuller v. Kemp, 138 N. Y. App. 231 (33 N. E. Rep. 1034, 20 L. R. A. 785); and also in 1 Cycl. Daw & Proc. 323; 1 Am. & Eng. Enc. Law, 415. So, too, payment by a stranger to the original debt of a less amount than due in full satisfaction has been uniformly held to be a good accord and satisfaction, and to bar a subsequent action for the balance. Gordon v. Moore, 44 Ark. 349; Fowler v. Smith, 153 Pa. St. 639 (25 Atl. Rep. 744) ; Clark v. Abbott, 53 Minn. 88 (55 N. W. Rep. 542, 39 Am. St. Rep. 577) ; 1 Cycl. Law & Proc. 325. In Shaw v. Clark, 6 Vt. 507 (27 Am. Dec. 578), the debtor furnished money to another to obtain the judgment in his name, which he did, and then discharged the defendant therefrom; and in a suit for the balance this was held to be no defense. “As the sum paid was really the money of the debtor, and paid over by his agent, it is the same as if paid by himself.” In Bunge v. Koon, 48 N. Y. 225 (8 Am. Rep. 546), the compromise was to be effected if the debtors could induce their friends to raise and loan them the portion to be paid, which was done; but the court said: “The money, when paid, was to belong, and in fact did belong, to the defendants. It was to be paid and was paid as their money. . Suppose a debtor agreed to go to work and earn the money, or to dig for it in the earth, would this furnish a new consideration to uphold the agreement of the creditor to take less than his. conceded due ? In all cases an embarrassed debtor must make some effort to procure the money to make a compromise, but no case can be found holding that the fact that he ha-c[ agreed to make such effort furnishes any consideration to uphold the compromise. The debtor is legally bound to pay, and it is utterly indifferent to the creditor where he gets the money to do it. That is a matter of the debtor, and all his efforts are expended in simply endeavoring to discharge a legal obligation. Hence the fact that the defendants agreed to induce-their friends to loan them the money, and that they did induce them, furnishes no new consideration to uphold the compromise.” In Harriman v. Harriman, 12 Gray, 341, the creditor agreed “that, if the defendant would raise and pay plaintiff the sum of twenty dollars, he would receive the same in full satisfaction of his judgment;” but there was nothing to indicate the portion was to be borrowed, and it was held payment under such circumstances operated as no defense, as the raising implied no more than a proposition to collect or obtain from other funds. The facts of the case at bar clearly distinguish it from those cited. Marshall had not borrowed the money, as was done in Bunge v. Koon, and the arrangement for raising it implied procuring it from another, as he had no other way of obtaining it, as was known to the owner of the judgment. The money paid never belonged to the-debtor, but was the property of and paid by a third party in reliance on the agreement to release plaintiff. True, repayment was secured by the other judgment debtor, but on the faith of this same promise. This, however, did not affect the title in any way to the money borrowed by said third party for the express purpose of releasing the plaintiff from liability on the judgment. It may be, as contended, that there was no consideration moving from plaintiff, but, as the agreement contemplated furnishing money by a third party, and it was so furnished, a new consideration moved from said third party for his benefit, and the agreement will be upheld. See Dalrymple v. Craig, 149 Mo. Sup. 345 (50 S. W. Rep. 884). — Affirmed.