8 R.I. 381 | R.I. | 1866
The plaintiff has brought his action upon a promissory note made by the defendants. The plea to this is, *384 that the defendants, being insolvent, have made an assignment of all their property in the State, and, after providing for certain preferred claims, have (in the third clause, I think) provided that all the remaining assets shall be divided among all the other creditors who shall, within four months, execute and deliver a discharge to the party; and that the plaintiff agreed and promised to accept those terms.
This plea is demurred to, on the ground that this understanding is neither a discharge, a release, nor an accord and satisfaction; there having been nothing delivered to furnish a consideration for any release.
With the party demurring, we are inclined to think this a valid objection. The most that this amounts to is an agreement that, upon receiving less than the amount due, the debt shall be discharged, which, in the case cited in the argument, is held to be a void agreement unless supported by a consideration. There must be either a release or an accord and satisfaction in order to discharge the debt. But in this case, upon the terms of this assignment, the condition of receiving anything is not simply that the party will agree to release, but that he should actually execute and deliver a release to the assignee, which, upon the papers, is shown not to have taken place within the four months prescribed by the terms of the assignment.
We think, therefore, the demurrer must be sustained in this case, and judgment must be for the plaintiff.
