80 Va. 303 | Va. | 1885
delivered the opinion of the court.
The principal question in this case, and the only one we deem it necessary to consider, is, whether there has been such a partial payment of the debt due by the firm of A. Coyne & Co., of which the appellant was a member, to the firm of Goodrich & Hendricks, of which the appellee I). A. Goodrich is assignee, as will operate as an extinguishment of the debt so far as the appellant .VI. T. Seymour and his brother S. M. Seymour are concerned.
The general doctrine to be deduced from the authorities from Pinnel’s ease, 5 Coke’s R. 117 a, down to the present time, seems to be, that an agreement to accept a smaller sum in lieu of a liquidated and ascertained debt, made between-the debtor and creditor, is a mere nudum pactum, and not binding upon the creditor, and, therefore, lie may accept the part and immediately sue for and recover the rest, notwithstanding his express, but unsealed, promise to release the debtor from the payment thereof. But this rule, being highly technical in its character, seemingly unjust, and often oppressive in its operation, has been gradually falling into disfavor; and the courts have therefore not only confined its operation strictly within its own narrow'- limits, but have seized upon every possible opportunity to evade its application. As a consequence, it has
Noav applying the principles of these cases to the facts of the case in hand, it seems to us clear that there has been a discharge óf the Avhole indebtedness due by-the firm of A. Coyne & Co. to the firm of Goodrich & Hendricks, of which indebtedness the appellee, D. A. Goodrich became assignee Avith full knoAvledge of this fact, at least so far as the appellants, M. T.
Decree reversed.