224 Mass. 50 | Mass. | 1916
It was held in Weber v. Couch, 134 Mass. 26, that an agreement (indorsed upon an execution), by which a creditor acknowledged satisfaction of the judgment in consideration of the payment of a smaller sum than the amount due thereon, was invalid.
The defendant has tried to take the case at bar out of that decision by reason of the fact that in addition to paying the smaller sum "in full satisfaction” the defendant in the case at bar "agreed to pay the balance of” the judgment. But in that contention the defendant is met with the same rule of law which was decisive of the case of Weber v. Couch. The paroi promise to pay the balance of the judgment did not impose upon the defendant a less onerous liability than that imposed upon him by the judgment and did
The defendant’s other contention is that the promise to pay the balance of the judgment comes within the doctrine on which it is held that a negotiable promissory note given by a debtor is frima facie payment of an open account; for which he cites Ilsley v. Jewett, 2 Met. 168, 173, and Wood v. Bodwell, 12 Pick. 268. But, whether the obligation assumed by the maker of a negotiable promissory nóte is or is not a more burdensome one than that resting upon one liable upon an open account, the negotiable note is more beneficial than the open account and for that reason there is a valid consideration in that case. And for the matter of that a non-negotiable note which is not within the rulé invoked (see Greenwood v. Curtis, 4 Mass. 93; Maneely v. M’Gee, 6 Mass. 142, 145) may be taken in satisfaction. If it is taken as an account stated it is founded on a valid consideration.
The defendant’s last contention is that, inasmuch as the judgment is satisfied on the record, the plaintiff’s remedy is by way of scire facias and for this he relies upon Perkins v. Bangs, 206 Mass. 408, and Perry v. Perry, 2 Gray, 326. But upon the face of the record the judgment was not satisfied. The indorsement upon the execution states that-the plaintiff had “received on the within named execution $125 in full satisfaction.” Since the $125 is a smaller sum than that due upon the judgment, it is apparent upon the face of the execution that the judgment was not satisfied.
The entry must be
Judgment affirmed.
