Rose v. Hall, 26 Conn. 392

Rose v. Hall

26 Conn. 392 | Conn. | 1857

Sanford, J.

In this case the superior court found that after the making of the promises mentioned in the declaration, and before the commencement of the suit, it was mutually agreed, by the plaintiff and the defendant, that the defendant should, within a reasonable time thereafter, transfer and deliver to the plaintiff all his stock of cloths and cassimeres then in the hands of commission merchants in New York and elsewhere, at fair market prices, to be fixed by the defendant, and two bills of exchange amounting together to sixteen hundred dollars ; and should, within a like reasonable time thereafter, manufacture and deliver to the plaintiff other cassimeres, sufficient, at fair market prices, to be fixed by the defendant, to amount, with the first mentioned cloths and said bills, to the sum of twenty-six thousand dollars in the whole, and that the plaintiff should accept and receive the same in full payment and satisfaction, &c.; that the defendant performed said agreement, and that the plaintiff received said goods and bills in full payment and satisfaction, &e.; and that at the time of said agreement, and at the time of the delivery of said goods and bills, there was due to the plaintiff a greater sum than twenty-six thousand dollars, namely, forty thousand dollars. Upon these facts the superior court rendered judgment for the defendant.

It is now claimed that that judgment is erroneous, because the record shows that the bills of exchange and the goods at *395the price agreed on, amounted to less than the plaintiff’s debt, and therefore could not be, in law, a satisfaction of such debt, notwithstanding the agreement of the parties and the delivery and acceptance under it.

We have no occasion to attempt the vindication of the rule on which the plaintiff relies, that the payment of part of a debt can be no satisfaction of the whole. This subject has been so recently under discussion and adjudication in this court in the case of Warren v. Skinner, 20 Conn., 559, that the existence of the rule as a settled principle of law can hardly be considered here an open question. And besides, this case does not seem to fall within its operation. The reason given for the rule is, that the creditor’s agreement is without consideration. The rule however supposes the part performance of the original obligation,—the payment of part at the time and in the manner originally stipulated for the payment of the whole; from which payment of a part rather than the whole, no benefit can accrue to the creditor, and no injury to the debtor.

But when a new duty is undertaken by the debtor which is, or may be burdensome to him or beneficial to the creditor, a new consideration arises out of such undertaking and sustains the agreement of the creditor:; as when the debtor undertakes to pay and pays part, at an earlier day, or at another place, or in another article, than required by the original obligation.

In these and like cases a new duty is assumed by the debtor, which may be more burdensome to him and more beneficial to the creditor than the full performance of the original contract, according to its terms, would have been. In this case the debt was indeed due, and it was more than twenty-six thousand dollars, but it was by the original contract due only in money. By the new agreement it was to be paid, and was paid, partly in bills of exchange, partly in goods on hand, and partly in goods to be manufactured by the defendant for that particular purpose. And although the quantity of goods was to be and was measured by their market value, yet it is obvious that they might be in fact *396worth more to the plaintiff than their market value. It might be desirable for him to obtain possession of the whole stock of that particular kind or style of goods, in order to control the market and speculate on its rise. The bills of exchange, too, gave him the security of the acceptor’s name in addition to his debtor’s. So that the plaintiff received, or might have received, some benefit under the new agreement, to which he was not entitled under the old. The defendant also undertook new duties. He agreed to manufacture cloths which might cost, in their manufacture, more than their fair market value, the price at which they were to be paid and received.

So that under the new arrangement the hazard of loss, trouble and inconvenience was assumed, and might have been suffered on the one side, as well as the prospect or possibility of profit or advantage secured on the other, either of which was consideration enough to support the promise of the plaintiff founded thereon.

We find no error in the judgment complained of.’

In this opinion the other judges concurred.

Judgment affirmed.