Ridlon v. Davis

51 Vt. 457 | Vt. | 1879

The opinion of the court was delivered by

Barrett, J.

The pleadings which are before us resulted in issues of fact to the country. The case was tried by the court on those issues. It is now to be determined whether the facts found maintain those issues, or any of them, in behalf of the defendant. Those facts do not maintain the general issue in his favor. The second plea is special in bar, setting up payment in general terms. The third plea is special, setting forth a special transaction and agreement between the parties .and performance by the defendant operating payment, satisfaction, and discharge of the note as an enforceable contract against the defendant. The fourth plea is in offset. Whatever may be held to be the legal effect of the facts found, upon the issues found, those facts, if effectual at all in favor of the defendant, are so upon the issue formed upon his third plea. So the case is considered with reference to that issue only. The third plea sets forth a transaction between the intestate and the defendant, constituting an agreement that, in case the defendant would do certain things thereafter to be done, some in her life time and some after her death, the same should be in full payment, satisfaction, and discharge of the indebtedness declared for, —being that evidenced by the note in' question, — and the plea avers performance by defendant. On this, issue is taken and submitted for trial. The finding applicable to this issue is, that the intestate agreed with the defendant, that, in consideration of what he and his family had done for and furnished her, which was not paid for, and in consideration that he would pay her doctor’s bills'through life, and pay her funeral expenses at her decease, and erect head stones, etc., he should have the note in suit. This proposition was accepted and agreed to by the defendant. The plea does not aver the whole that is found to have been the consideration upon which the defendant was, by the agreement, to have the note, as it omits to aver anything as to what the defendant and his family had done for and furnished the intestate. No question of variance is made on this score. Whatever view may be held as to services and supplies theretofore rendered being a valid and sufficient consideration for the alleged promise of the intestate, it is plain that the promise and performance of what the defendant undertook thereafter to do, would render effectual and binding the agreement of the intestate, unless prevented by the fact that the performance by defendant was not to be till after the death of the intestate. What had been done that was recognized and treated by the intestate as part of the consideration for her promise as to the note, even though it might not, of itself, uphold the agreement, would not impair the effect of what was thereafter to be done, as a consideration of the intestate’s promise. She had in mind what had already been done. She said to the defendant, “ If you will hereafter do the things proposed, you shall have the note.” Whether, defendant could have enforced a claim for what he had done or not, there was no mistake of fact as to what he had done. So, if the intestate supposed he could, and in that view made to him the proposal in full, as found by the coui’t, so far as that part of the consideration for defendant’s promise and performance is concerned, it was at most a mistake of law on her part; and so could not be available as a ground for invalidating her promise that defendant should have the note. We do not, therefore, find it needful to determine whether, for what defendant had done, he could have enforced compensation against the intestate. It comes then, to this, — did the performance by defendant of what he undertook, render effectual in his favor the promise of the intestate that he should have the note ? No case is cited to the effect that the contract would not be effective, because the performance of it on the part of defendant was, by its provisions, to be done after ihe death of the other party. It was as much within the province of the intestate to make a binding contract in such terms, as'in terms that should prescribe the time by days, and months, and years, within which the defendant was to perform on his part. The other party might die in such case, before the expiration of the time thus limited, but that would have no effect on the binding force of the contract, nor on the right of the party who should perform within the time limited. It is well understood in the law, that though the agreement to pay, and the payment in fact, of a less sum of money in discharge of a money debt already due, of a specific amount, does not bar a recovery of the unpaid balance. Still the agreeing to be .paid for the debt in full by the doing or giving of something besides the payment in money, and something which the debtor was not under obligation to do by way of paying the debt, and the doing or giving of that something by the debtor, operates payment. Upon the third plea, the facts found in this case would seem to have effect in behalf of the defendant under the rule of law just stated. See Bowker v. Harris, 30 Vt. 424, also 21 Vt. 222. The agreement as found was, that, for the doing of things proposed, the defendant was to have the note. This, in legal effect, would be tantamount to satisfaction and discharge of the note as an indebtedness against the defendant. The note, rightfully in his possession as his own, would be only of the same character and virtue as if indorsed as paid, or with his signature erased or torn off by the holder because the indebtedness had been satisfied and discharged. The transaction was not an agreement for the sale of the note to the defendant to be perfected and pass title by delivery, but it was for the payment and satisfaction of the note in the mode proposed and agreed, — and when thus satisfied, then to be given up, or held as of force no longer. The fact that the note was retained by the testator was consistent with the contract for its satisfaction, and, in fact, only thus consistent. In this view the court think the judgment can be maintained; and it is affirmed.