53 Barb. 533 | N.Y. Sup. Ct. | 1868
Lead Opinion
The debt not being due at the time, the plaintiff was under no obligation to take payment in advance, and discharge the bond and mortgage, although
It appears by the case, that the defendant did agree with the plaintiff that, if he would satisfy the bond and mortgage, he would pay him $500 then, instead of paying the amount in yearly payments as the same should become due and payable by the condition of the bond and mortgage. It also appears that he was anxious to anticipate the payments and get the mortgage off from his farm. The plaintiff preferred’ to keep his money invested as it was, but on the defendant’s offering to pay him $500 to get rid of the mortgage, the latter concluded to accept it and satisfy the mortgage.
If the matter had rested here, perhaps neither party would have been bound by the agreement, for it would have been rather a proposition on one side not definitely acted upon by the other, so as to make it a binding contract. But the parties did not stop here. The proposition of the defendant was not only accepted by the plaintiff, but acted upon. The defendant in fact induced the plaintiff' to accept a .payment of $250 at the time, and $30 more in a day or two after. When these payments were made, they were made and accepted under the new agreement, and in part performance thereof. If the defendant had signified his intention of having them applied as payments upon the bond and mortgage, (where they must be applied if this judgment is sustained,) the plaintiff would doubtless have refused to accept them; and it is very clear that the plaintiff did not accept them, except as part performance of the new agreement.
In my opinion, this new agreement, after it had been thus far acted upon, became binding and obligatory upon both parties. There is no difficulty in finding a consideration to- support it. The authorities are clear that a creditor may accept a less sum than what is stipulated for in the contract, and discharge it, when the debt is payable at
The question here is not strictly one of accord and satisfaction. That question' would perhaps come up if the defendant-had tendered payment of the $500 under the new agreement, and it had been declined by the plaintiff. "When the plaintiff afterwards attempted to foreclose his mortgage, the new agreement and a tender of performance under it would have raised the question—a question, however, rather of form than of substance, as I shall presently show.
I think no good lawyer will question the proposition, that if the defendant had paid the $500 under the new agreement, and the plaintiff had accepted it, the new agreement thus executed would be a good accord and satisfaction, and could be interposed as' such to a suit afterwards brought by the plaintiff upon these sealed obligations.
How when it is conceded that the new contract is founded upon a valid consideration, it must also be conceded that the parties may enforce performance of it.; and although the authorities may doubt whether the new agreement can be pleaded as an accord and satisfaction, while its stipulations are unperformed, there is no difficulty in interposing such a defense, when it has been voluntarily performed by the parties, or when its performance has been enforced by the courts.
If the new agreement has been obtained by fraud, or is the result of a mutual mistake, the party injured may doubtless avoid it. upon these grounds. But when it is otherwise valid, and none of these grounds are alleged or proved to avoid it, it may be enforced like any other contract. This action is brought to enforce such an agree
I have already said enough as to the consideration. Unless it can be avoided for- fraud or mistake, it must be enforced; and after it is enforced, there will remain no more technical difficulties growing out of the numerous ■ authorities cited upon the question of dissolving sealed instruments by contracts of an inferior nature.
It would doubtless be inequitable to require the plaintiff to apply the $280 received by him under the new agreement, upon the bond and mortgage. If there was fraud or mistake which would authorize the defendant to avoid the agreement, he should have put the plaintiff in statu quo, by offering to rescind it. This he could not do without offering to cancel the agreement and take his money back. But, in fact, no fraud was pretended; and I am clearly of opinion that it is not a case where the court would afford relief on the ground of mutual mistake. Both parties had the means at hand to ascertain the amount unpaid upon the bond and mortgage. The defendant supposed he had got the advantage of the plaintiff. In this he was doutless mistaken, but it was one of those mistakes for which the other party was in no way responsible, and which the commonest prudence on the part of the defendant would have corrected. . To entitle a party to relief in such cases, the mistake must not only be material, but must be such that he could not with reasonable diligence have obtained knowledge of the fact. (Willard’s Eq. 70.)
To my mind this is a very plain case. The agreement is not to be set aside because the consideration is inadequate. Suppose the defendant had given his note to pay the balance over the $280, upon the payment of which
Assuming that the contract is valid, either party may enforce its performance, and when performed by the defendant, either voluntarily or after recovery against him in the action, he will be at liberty to enforce a satisfaction of the mortgage.
The judgment. should be reversed, and a new trial granted, costs to abide the event.
Postee, J., concurred.
Dissenting Opinion
Eo rule of law is better settled than that an instrument under seal cannot be discharged
Such an agreement may, however, be discharged by an executed parol agreement. (2 C. & H. Notes, 1477, &c.)
Such an agreement operates by way of accord and satisfaction.
These propositions may therefore be stated thus: a sealed instrument cannot be discharged by an accord, merely, but may by accord with satisfaction.
It is competent, however, for parties to a contract to discharge it by substituting in its place a new parol executory agreement, founded upon a new and sufficient consideration moving between the parties. (Billings v. Vanderbeck, 23 Barb. 546.)
In this case the plaintiff had purchased several articles of personal property, for which he had given his note, payable in November, 1852. Amongst the property thus purchased was a mare, which the defendant warranted sound. She proved to be unsound, and the plaintiff-brought an action on the warranty, before a justice. Before the trial of that action the parties entered into a new agreement, whereby, in consideration that the plaintiff would' discontinue said suit, and return to the defendant the property so purchased, the defendant promised and agreed to surrender to the plaintiff his note, and pay the costs of the action.
The plaintiff alleged that he offered to return the property at the time and place agreed upon, but the defendant did not attend to receive it; and the plaintiff sued on the new agreement. The referee found that the plaintiff was at the place agreed on for the return of the property, but the defendant was not present; that the plaintiff had voluntarily paid the note he gave for the property, and had sold the said property and kept the proceeds. There was judgment for the defendant, which the general term reversed, holding the old agreement was
In 2 Pars, on Cont. (5th ed. 681,) it is said the party holding the claim may agree to take a new promise of the other ‘ in satisfaction of it, or he may agree to receive a new undertaking when the same shall be executed as a satisfaction, * * * if the new promise be founded on a new consideration, and is clearly binding on the original promisor, this is a satisfaction of the former claim; otherwise it is no satisfaction. (Babcock v. Hawkins, 23 Vt. Rep. 561.)
In Cortwright, adm’r of John Cook, v. George Cook, (3 Barn. & Ad. 701,) the action was brought to recover for money paid by the plaintiff on an annuity bond to one Clay, signed by John Cook, as surety for the defendant. The plaintiff was compelled to pay the sum of £85, as such surety, and sued to recover it of the defendant, the principal debtor. The defendant gave in evidence an agreement entered into between the said John, George and one Sunderland Cook, whereby, in consideration of certain property transferred to the intestate, he assumed to pay the annuity in question. There was a verdict for the plaintiff, subject to the opinion of the court. The agreement was held to be a good accord, and bound the plaintiff.
In Comyn’s Dig. title “Accord” B 4, it is said: “• So an accord with mutual promises to perform is good, though the thing be not performed at the time of action; for the party has a remedy to compel the performance.”
The agreement relied on by the defendant as the substitute for the bond and mortgage, was that the defendant would pay, and the plaintiff would receive, $500 in satisfaction of the debt secured by the bond and mortgage, and that he woúld pay the money in two or three days. When this agreement was made, there was in fact $389.55
We have, then, a new agreement to pay $500 in two or three days, in lieu of the agreement evidenced by the bond and mortgage, and this agreement supported by a new and valid consideration.
Had the money been paid, it could not be doubted but that the transaction would have amounted to an accord and satisfaction, and an action to enforce either the bond or mortgage would have been barred.
How if it be true that a new agreement, founded on a sufficient consideration, operated as an accord and satisfaction, then the plaintiff has the right to recover the amount unpaid upon the new agreement.
The question now is, did the plaintiff agree to accept the promise of the defendant to pay the $500 in two or three days, in satisfaction of his bond and mortgage, or was it the money that he agreed to accept, should the same be paid within the time named by the parties ?
If the former, then the new agreement was a satisfaction, within the cases cited. If the latter, then he was at liberty to recant at any time before actual payment.
I cannot believe that the plaintiff intended to relinquish his lien on the bond and trust to the defendant’s promise to pay the $500. (Day v. Roth, 18 N. Y. Rep. 456.)
If this is the correct view of the rights of the parties, then there was no satisfaction, and the bond and mortgage were left in full force.
It does not seem to be settled that a new agreement, founded on a new and sufficient consideration, will discharge an instrument under seal, if its effect is to dis
The judgment should be affirmed.
blew trial'granted.
Foster, Muffin and Morgan, Justices.]