1 Hilt. 515 | New York Court of Common Pleas | 1857
The defendant, having made a 'composition ivith several of his creditors at forty cents on the dq^ar, made a similar agreement with the plaintiffs, by which he agreed to pay the plaintiff forty cents, and did thereupon pay to the plaintiffs the amount of such per ccntage, and received from them a receipt, purporting to be in full of account. The defendant also, on the day previous, gave a scaled instrument, by which he bound birr.self to give his note at twelve months for an additional forty per cent., as soon as his compromise should be effected, on condition that the plaintiffs would sign a paper purporting to compromise bis indebtedness to them for forty cents.
It was never completed, and tbe plaintiffs now bring this action for the debt due them. If the plaintiff had signed a composition deed with other creditors for a fixed rate, any private agreement for a further sum would be void, and tbe plaintiffs would be bound by their compromise. Bat sucb a principle does not extend to a mere agreement by tbe debtor with his creditor to pay a less sum than the debt and be discharged. Nor, if carried out, is a mere receipt in full a bar to an action for the balance of the debt, if it appear that only a part of the debt lias actually been. paid.
But it is not necessary that a composition deed should be actually signed by the party in order to make the composition valid. If tbe claim of the creditor is a simple contract, a parol agreement to compromise, by which other creditors are led also to
In Heath v. Crookshanks (2 T. R. 24), it was held that such an agreement was not binding merely as an accord, without payment and acceptance of the amount. But, on payment and acceptance, .such a composition would be held valid.
In the present case, the creditors received the forty per cent, which they had agreed to accept, and gave a receipt therefor in. full, and the account on the plaintiffs’ books was carried to profit 'and loss. The agreement which the plaintiffs took from th*de-fendant, to pay a further forty per cent., was not to be binding until the compromise was concluded, and one of the plaintiffs, who was examined as a witness, says that some of the creditors called to see them in relation to the compromise; but there is no evidence that the plaintiffs ever executed any compromise deed, or that any other creditor was ever induced to enter into a compromise with the debtor in consequence of such an agreement with the plaintiffs. Before the defendant is entitled to such a defence,, he should have established one or the other of these facts. No. proof was offered in regard to either, and the case is then left with the mere agreement to pay a less sum than the debt in discharge of the whole, and a receipt in full given therefor. It is well settled, that the payment of a less sum than the real debt will be no satisfaction, without a release under seal. Seymour v. Minturn, 17 J. R. 169.
The receipt is not conclusive upon the parties. It does not show that the debt is paid in full, but that a debt of a larger sum was paid in full by the payment of $130. The evidence is not to alter the written paper, but to show that the debt cancelled by the payment of $130 was much larger.
There is nothing in the rule against varying written instruments by parol which would have excluded the evidence; and
There is no ground on which we can interfere with this judgment, and the same should be affirmed.
— It was essential, in this case, to show that other creditors had consented to accept the forty per cent, in discharge of their claims in consequence of the plaintiffs’ consenting to do so. The consideration which supports such an agreement, when it is not under seal, is the mutual understanding, among all who become parties to it, that each is to take the composition agreed upon, and forbear further to press or insist upon their claims. It is said in Good v. Cheesman (2 Barn. & Adolph. 328), by Lord Temerden, “ that a creditor shall not bring an action where others have been induced to join him in a composition with the debtor; each party giving the rest reason to believe that, in consequence of such engagement, his demand will not be enforced. This is, in fact, a new agreement, substituted for the original contract with the debtor; the consideration to each creditor being the engagement of the others not to press their individual claims.” . It must appear that the act of the plaintiff, in accepting the forty per cent., operated as an inducement to other creditors to do the same, otherwise it is but the acceptance of a lesser sum for a greater, which is no satisfaction. Thus in Lowe v. Equitar (7 Price, 604), the plaintiff agreed with the defendant to execute a deed of composition with the other creditors, and. take the benefit of the composition with them, in consideration that the defendant would also deliver 'to him a picture of the value of Ü500. The picture was delivered and accepted by the plaintiff in full satisfaction of his claim, and the defendant and all the other creditors, except the plaintiff, signed the composition deed. The plaintiff sued for the original debt, -and a plea setting up these facts was held to be no bar. I am inclined to think, from the report of this case, that the picture was accepted in lieu of, or as a payment of the composition, and if so, it was a case, in its essential features, like the present. Where creditors meet
The judgment must be affirmed; but, as the question is not
Judgment affirmed.