64 Me. 563 | Me. | 1875
This is an action of assumpsit upon an accepted draft. After the plaintiff had made out his case the defendant offered to prove an agreement under the hand and seal of the plaintiff, after the maturity of the draft, to accept a certain percentage less than the amount of the draft, in payment thereof; and to transfer to some third person his debt on receipt of the same within a certain space of time; that the percentage agreed upon was tendered within the time limited, and that the plaintiff refused to accept the same, and brought this action.
The material question is whether these facts, if proved, would constitute a defence to the suit.
It is manifest they would not show payment. The plaintiff was to transfer his debt to. a person agreed upon. The debt to be assigned must exist. If the debt was to bo regarded by the parties as paid or discharged, it would cease to be a debt, and consequently would cease to be transferable. But as it was to be transferred, it is manifest that neither its payment nor its discharge was in the contemplation of the parties. It was to be held by the assignee for ulterior purposes.
Neither do the facts offered to be proved show accord and satisfaction. The agreement relied upon was executory. In Hawley v. Foote, 19 Wend., 517, it was held not a good plea of accord and satisfaction that the plaintiff agreed to accept the note of a" third person in discharge of the demand in suit, which on being tendered him, he refused to accept. “There has been no satisfaction,” observes Bronson, J., “the accord has not been executed, and the action is not barred.” Russell v. Lytle, 6 Wend., 390; Com. Dig., B. 4. It has been said that a different rule was laid
The tender, if there was one, cannot avail the defendant as it has not been brought into court.
The remedy of the defendant is upon his contract, if the plaintiff has failed to perform it. Exceptions overruled.
