5 Johns. 386 | N.Y. Sup. Ct. | 1810
delivered the opinion of the court. This is a plea of accord and satisfaction, and I think it is suEciently pleaded. There is more nicety than good sense in some of the cases on this subject. Accords are favoured in law, and if so, they ought not to be too rigorously expounded. The agreement was good. It was to assign stock in trade and outstanding debts. Now we cannot say, as the court said of an equity of redemption, in Preston v. Chrisomas, (2 Wils. 86.) that this was nothing in law. Lord Coke says, (1 Inst. 212. b.) that the acceptance of a bond in satisfaction of the money is good. The plaintiff agreed to receive such assignment in satisfaction of his debt, and the plea goes on to state the accord executed. It avers, that the defendants did deliver the stock, and assign the debts; and that such delivery and assignment were received by the plaintiff in satisfaction of the debt. An objection is here made to the performance. The plea does not state that the stock in trade was assigned; but, as it was stated to have been delivered and received; and as stock in trade means chattels, this was equivalent to an
The word assign, has various significations, and it must be taken according to the subject matter, its meaning is to set over, or transfer; and when applied to moveables, a delivery will satisfy it. Nor does the plea state that the stock and debts were assigned and delivered in satisfaction. This Vas not requisite by the words of the accord. By the accord, the defendant was to assign to, and the plaintiff was to receive, in satisfaction, and thdplea fully avers the performance of it. The plaintiff did receive the delivery of the stock and assignment of the debts in full satisfaction. But it is not stated in the plea to -whom the assignment was made. I answer, that the accord did not specify the assignee or trustee ; and as the assignment was received by the plaintiff in satisfaction it was well enough, without naming the per* son.
The name of the trustee would have been of no use towards judging of the execution of the accord, or of the value of the satisfaction. The only real question on the merits of this plea is, was the property assigned and. delivered, a legal satisfaction l I know of no case that denies this. The doctrine in Pinnels case, (5 Co. 117.) has always been received as good law, and there it is admitted that payment of a horse, instead of the money due ; or of a less sum, if before the day, or at a different place, will all be adjudged a satisfaction, if so accepted by the plaintiff.
The cases that have adjudged that a payment of a t less sum in satisfaction, as of 5l. for 15l. was no satisfaction, go upon the ground that it was apparent and palpable, on the very face of the agreement, that there could not have been a satisfaction, for all the world knows that Si. is not worth 15l. nor can it be deemed equivalent, by any man in his senses, (Cumber v. Wane, 1 Str. 426. Fitch v, Sutton, 5 East, 230.)
Littleton says, (sec. 344.) that if the horse, or thing be not of the twentieth part of the value of the sum of money, yet it is good enough, because the other has accepted it in full satisfaction.
In Cumber v. Wane, Ch. J. Pratt said, it must appear to be a reasonable satisfaction, or at least the contrary must not appear, as it did in that case. Though an accord executory be no bar, yet an accord executed is good, because the party has accepted it in satisfaction. All the authorities agree in this. (1 Roll. Abr. tit. Accord, pl. 14. 2 Ld. Raym. 122. 2 H. Black. 317.) The acceptance in satisfaction is the essence and gist of the plea ; and Lord Coke (Peytoe’s case, 9 Co. 80. 86.) recommends, as the best way of pleading an accord, to plead it by way of satisfaction only.
A doubt was suggested, on the argument, whether this matter was at all pleadable puis darrein continuance. There is no doubt that any defence arising after the last continuance, may be pleaded in this manner.
I have endeavoured to notice every objection to the plea, which appears to have any weight, and I think, upon the whole, the plea is good, both in form and substance.
There must be judgment for the defendant.
Judgment for the defendant.