16 Minn. 83 | Minn. | 1870
By the Court
The referee who tried this case finds, that on the 12th January, 1867, the defendant owed the plaintiff $300 and some accrued interest, which would become due on the first of March, 1867. That on said 12th day of January, the defendant paid to the plaintiff, and the plaintiff received the sum of $100, in full of said debt. That the plaintiff’s motive in so doing, was compassion for defendant’s misfortune in having shortly before been burned out.
Plaintiff in this action sues for the balance of said debt. The law on this subject of accepting par,t in satisfaction of the whole is stated with clearness and brevity by Judge Metcalf, as follows: “A promise to take a less sum in satisfaction of a greater, where the greater sum is fixed and liquidated, or is ascertainable by mere mathematical calculation, is without consideration and void; and after taking it and agreeing to discharge the debtor, the creditor may recover the balance. Aliter, if a sealed acquittance be
So, payment before the day, or at a different place, is something collateral to the payment itself, showing a. possibility of benefit to the party relinquishing his further claim, (for, as is said in Pinnel's case, 5 Co. 117, “peradventure parcel of the sum before the day would be more beneficial to him than the whole at the day,”) and, like a seal, it raises or imports a technical legal consideration, and so, the technical reason of the rule, viz., want of consideration, ceasing, the rule itself in these cases also ceases to be applicable; and it is obvious, that whether the rule shall be applied or not depends upon the existence or non-existence of a consideration, and not at all upon the recognition of that fact by the parties.
The plaintiff makes some other points in support of his motion for judgment notwithstanding the report, and of his motion for a new trial for the reason that the report is contrary to law, which we will briefly consider. The first is, that there is such a Variance between the answer and the defendant’s evidence, that the latter was not admissible under the allegations in the former, and should have been disregarded by the referee.
The complaint alleges in substance that, for certain property sold by plaintiff to defendant, the latter promised, to pay him $900 “until spring 1867,” with interest; that during 1866 he paid $600, and in January, 1867, $100; and that the balance of “said purchase money,” amounting to $200, and interest as specified, is due and unpaid. The answer alleges “that, on the 29th day of December, 1866, and before said debt became due and payable, this defend
But we think this is being too critical. The answer may be well held to refer to that debt which was unpaid on December 29, 1866, viz: $300 and interest, and when it alleges that on that day defendant paid and plaintiff accepted $100, in satisfaction of the “same demand and claim mentioned in the complaint,” it may properly be taken to refer to the unpaid balance of purchase money as it existed on that day. The defendant’s evidence corresponls with the answer thus interpreted, for it is, that he paid the $100 on December 29th, 1866, in full of $300. The obscurity in the answer arises from the want of an explicit averment that the $100 therein mentioned, is the same $100 averred in the complaint to have been paid in January, 1867, but we think perhaps it is reasonably to be inferred; if not, it presents a case in which plaintiff should have moved that the answer be made more definite and certain. Again, if we suppose
The defendant testified that he paid no other $100, than the one in December, 1866. That would be a variance from the admission, but it would be an immaterial one, for a good accord and satisfaction on the 29th December, 1866, being well pleaded and sworn to, it would be of no consequence whether or not defendant had afterwards chosen to make plaintiff a present of anything more; there is no material variance between the answer and defendant’s proof, and the plaintiff’s point that he was misled thereby does not require consideration.
A further alleged reason why the plaintiff should have judgment notwithstanding the answer, is, that an accord and satisfaction is not therein well pleaded; that is, this being the only defense set up, that it does not state facts sufficient to constitute a defense; that it is not sufficient to aver that the $100 was paid before the debt fell due, but it must be alleged that such payment before due, was the consideration for the arrangement made between the parties. Otherwise, it is said, as it appears from the complaint, that the defendant might pay at any time before spring that he might choose, it will be presumed that he paid in pursuance of that privilege.
Granting, that ‘ ‘•until spring, 1867,” means "on or before spring,” still it is not a consideration for defendant’s paying that is required, but for plaintiff’s acceptance of the payment in full of the debt. We have seen that it is not necessary to prove that he recognized the fact of payment before due, in making his bargain as the consideration for making it, and if so, it is not necessary to allege it. The answer in this respect conforms to precedent and is correctly drawn.
Order appealed from affirmed.