50 Miss. 251 | Miss. | 1874
delivered the opinion of the court:
This writ of error is prosecuted to review the rulings of the circuit court in sustaining a demurrer to the defendant’s special pleas, setting up accord and satisfaction.
The first plea avers an agreement to make and deliver to the plaintiff three promissory notes of $500 each, and to execute and deliver a deed in trust as security therefor, in payment and satis
Thereupon, the defendants filed, under the judgment of respondeat ouster, a fourth plea, alleging the same facts with more fullness and particularity, with the additional averment, that the defendant had paid the first due of the three notes of $500 each, and that he was ready and willing to pay the other two according to their tenor and effect. At the same time, defendants filed a notice that they would offer to prove a series of facts, substantially the same as those stated in the plea.
To this plea the demurrer was also sustained. The case was submitted to the jury on the general issue. There was no motion made for a new trial; and we are without information as to the evidence before the jury.
It is urged, in this court, that the demurrer ought not to have been sustained to the third and fourth pleas.
Accord and satisfaction is the substitution of another agreement between the parties in satisfaction of the former one, and an execution of the latter agreement. Such is the definition of this sort of defense, usually given. But a broader application of the doctrine has been made in later times, where one promise or agreement is set up in satisfaction of another. The rule is, that an agreement or promise of the same grade will not be held to be in satisfaction of a prior one, unless it has been expressly accepted as such. As, where a new promissory note has been given in lieu of a former one, to have the effect of a satisfaction of the former, it must have been accepted on an express agreement to that effect.
But the original promise was to pay $3,400, and the new agreement was to pay only $1,500, in three equal installments. The general rule is, that a similar security for a smaller debt cannot be pleaded in satisfaction of a larger debt. Heathcote v. Crookshanks, 2 T. R., 24; Lynn v. Bruce, 2 H. Bl., 317. But the rule
The doctrine generally accepted by the courts is, that a creditor is not bound by an agreement to accept a smaller sum in lieu of a liquidated ascertained debt of a larger amount. If, however, the latter agreement or promise is supported by some new and-additional advantage to the creditor, it will serve as a consideration sufficient to support the new promise or agreement. Steinman v. Magnus, 2 Camp., 124; Sibree v. Tripp, 15 M. & W., 23. The earlier authorities lay down the rule with strictness, that an accord to avail anything must be executed. The performance too-, it was said, must be strictly in conformity to the accord. It would be difficult to reconcile with this principle that class of cases which hold that a subsequent agreement or promise may be pleaded in satisfaction of a prior one, unless there has been performance of the latter. The distinction which is palpable is,, that in the latter class of cases the promise or agreement is secured in satisfaction. But if the intendment of the parties is, that performance of the latter promise, and not the promise itself, is intended to work satisfaction, then there will be no satisfaction without performance.
The reason as given by Lord Ellenborough in Eitch v. Sutton, 5 East, 232, why the acceptance of a less sum in money than is actually due wall not extinguish the whole debt, though received by the creditor upon that condition, is that there must be some consideration for the relinquishment of the excess beyond the-amount paid ; something.to show the possibility of benefit to the creditor. It is well settled on authority, that if the creditor accept some other thing, as a chattel of much less value, it could be pleaded in satisfaction. There is no sound, rational distinction between the acceptance of an article of property, worth just half
The rule supported by authority is this. If the creditor compounds with the debtor, and agrees to take less than the whole debt, and accepts the bond or promissory note of his debtor with security, or the note of a third person, here the new and additional security makes a consideration for a relinquishment of the excess, and the accord and satisfaction are complete. Brooks v. White, 2 Met., Mass., 285, 6, 7; Boyd & Suydam, 20 John., 76; Booth v. Smith, 8 Wend., 66; Harper v. Graham, 20 Ohio Rep., 114 These and other cases that might be referred to hold the doctrine, that if the debtor offers additional security, on the terms
In the exigencies of business, it may be a very prudent arrangement, for a creditor to secure part of bis debt when the whole is in danger of loss.
The pleas (in tbeir substance) bring the defense within the rule we have been discussing. The agreement was that the defendants should make the three promisory notes of $500 each secured by deed of trust, which the plaintiff accepted in discharge of his larger debt. The 3d plea sets up the accord to have been that the not.es and deed of trust were to be made, and tbe creditor agreed to accept tbem in satisfaction of the debt sued on — that they were so executed and received by the plaintiff. The notes and the security, were accepted in satisfaction so tbat the plaintiff would look to them alone, and not to the original debt. The performance contemplated by the plea was the making and delivery to the plaintiff of the notes and security.
We are of opinion that tbe demurrer to tbe 3d and 4th pleas ought to have been overruled. The counsel for the defendant in error, insists, that although it may have been erroneous to adjudge the pleas bad, yet the defendants under the notice might have proved the same facts to the jury. We can not, in the absence of information communicated by tbe record, suppose that the circuit court would have allowed testimony to go to the jury to establish a defense which it had twice adjudged to be bad. No question has been made in this court arising on tbe pleas as to tbeir technical fullness. We have confined ourselves to tbeir substantial merits We think the pleas substantially good.
