3 Vt. 334 | Vt. | 1830
delivered the opinion of the Court.~-.It is well established, that the payment of part of a debt is no satisfaction of the remainder, although the creditor agrees to receive the sum paid, and gives a receipt, in discharge of the whole demand. In the case of Fitch vs. Sutton, 5 East, 232, Lord Ellenborough says, "it cannot be pretended that a receipt of part only, though ~e~pressed to be in full of all demands,must have the same operation as a release: acceptance of a less cannot be a satisfaction in law of a greater sum due: there must be some consideration for the relinquishment of the residue, otherwise the agreement is nudum 2actulm." if, however, upon the faith of such an agreement, a ~third person be lured in to pay, or become surety for, a part of the debt, on the ground that the party will be discharged from the re-anainder, the agreement will be binding upon the creditor ; but un
If the receipt of part of a debt, in discharge of the whole, is not a satisfaction of the debt, it follows, that the agreement in the receipt, in this case, that the several debtors, from whom the part payment is acknowledged to have been received, should not be made further liable, but the sum paid should be to them a full and complete discharge, is not in law a discharge of the plaintiffs, and cannot avail them as such. Indeed, it has been expressly decided, that a payment by one of two joint debtors of a part of the debt, with an agreement not to call on him for the residue, or that he shall be discharged, is no bar to an action against both. In the case of Harrison vs. Close et al. (2 John. Rep. 448,) where the plaintiff agreed with one of two joint and several promisors of a note, that if he would pay a certain part of it, he would not call on him for the payment of the note, but would look to the other promisor for the residue, it was held, that the payment of a part, under the agreement, without a release by deed, was no discharge. And in Rowley vs. Stoddard et al. (7 Johns. Rep. 207.) it was determined, that a receipt in full, given to one of several debtors on his payment of part of the debt, was not a release in law, and could not avail as a discharge of the other debtor. On the authority of these and the English decisions, we held in the case of Spencer vs. Williams et al., 2 Vt. Rep. 209, decided in this
Judgement reversed, and cause remanded to the county court for a new trial.