28 N.J. Eq. 348 | New York Court of Chancery | 1877
The bill is filed to restrain the defendant, John Nelson, from enforcing payment of a judgment recovered by the
There were mutual dealings between the complainant and the defendant, John Nelson, individually; and there were mutual accounts, and also an indebtedness from the complainant to John Nelson, for which the latter held the promissory notes of the former. It appears by the statements of the bill, that the complainant and John Nelson, in March, 1870, made an attempt to settle their demands against each other, in which the amount of Nelson’s demands against Smalley, and the amount of the latter’s demands against Nelson, were ascertained; but no settlement was agreed upon,.nor was any amount ascertained as the balance of the accounts. Nelson then produced for payment the note of $500, which, as before mentioned, had been given by Nelson & Smalley to Line & Nelson. Abraham Y. Nelson, the complainant’s then late partner (for the partnership had been practically dissolved), was insolvent, and that fact was known to John Nelson, who was his brother. The $500 note was then the property of John Nelson, to whom it had been assigned in a settlement between him and Isaac Line of their partnership affairs. The complainant objected to including the $500 note in the settlement between him and John Nelson, and refused to settle their individual demands. No settlement was therefore made at that meeting.
A few days afterwards John Nelson came to the complainant’s house and renewed the effort for a settlement. The complainant still refused to include the $500 note in the
The bill states that on doing so he said he would “ put it down that way,” and would “ give the complainant a writing at any time releasing him from all liability on account of that note,” and he requested the complainant to say nothing to Abraham Y. Nelson about the transaction, because he was “ going to hold the note ” against the latter and compel him to pay the balance. The complainant, confiding in John Nelson’s promise, left the note in his possession. He never obtained any release in writing. He subsequently paid the $1,000 note. Afterwards John Nelson brought suit on the $500 note, in the supreme court, in the name of Line and himself, against the complainant and Abraham Y. Nelson, and recovered judgment thereon. The complainant in that suit pleaded the agreement as a release and as an accord and satisfaction, but the defence did not avail him. The agreement w;as denied effect as a release, because it rested merely in parol. And it was not available as an accord and satisfaction, -because it was not a satisfaction of the entire debt so as completely to extinguish it. Line v. Nelson & Smalley, 9 Vr. 358. Thereupon the bill was filed.
The motion to dissolve the injunction is urged on the ground that the sheriff, in whose hands is the execution issued upon the judgment, and whom the injunction restrains,
The motion to dissolve will be denied with costs.