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Moss v. Shannon

1 Hilt. 175 Court N.Y.C.P. English

Delivered by INGRAHAM, First Judge. —

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p. 175
Medad T. Moss v. Joseph Shannon.

Headnote

The payment of a part of a judgment-debt, and the giving of the debtor’s own notes for a part of the balance, will not, without a satisfaction or release, discharge the indebtedness, although received in full payment and satisfaction.
And it makes no difference that the notes were made payable to the attorney of tho creditors, who is acting for and on their behalf, instead of being made payable to them directly.
In an action upon a judgment, by the assignee of the judgment-creditor, it is not necessary to aver any demand of payment by the assignee, or any refusal to pay by the debtor.
Appeal by defendant from an order at special term sustain-^ ■ ing a demurrer to a part of defendant’s answer. This was an action to recover a balance of $233.89, upon a judgment for $508.79, recovered by Elam Hurd and Julius T. Alden against tbe defendant and assigned to the plaintiff. A part payment of tbe judgment was admitted by the complaint. Tbe answer set up, as one of tbe defences, that subsequent to tbe recovery of judgment tbe defendant gave to one Henry Hurd, acting for and on bebalf of Elam Hurd and Julius T. Alden as tbeir attorney, $125 in cash, and three notes for $50 each, made payable at the Butchers’ and Drovers’ Bank, wbicb be agreed to take in full satisfaction, payment and discharge of tbe judgment, provided tbe notes were paid at maturity. That the notes were paid at maturity, and tbe judgment thus satisfied and discharged. To this part of tbe answer tbe plaintiff demurred, tbe demurrer was sustained, and tbe defendant appealed.
F. Byrne, for tbe appellant.
I. No notice of tbe alleged assignment is averred, nor is there any averment in tbe complaint of a demand on the defendant, or a refusal on bis part to pay the balance claimed to be due. Sears v. Patrick, 23 Wend. 528 . II. The notes given were made payable to tbe order of Henry Hurd, a third person, and were made payable at tbe Butchers’ and Drovers’ Bank. Tbe payment being thus made to
p. 176
a third person, and at a particular place other than tbe place where tbe debt would bave been payable, it is good as a satisfaction. 2 Coke’s Institutes, 212, b.
W. H. Green, for tbe respondent.
I. Tbe payment pleaded being of a sum less than tbe amount of the judgment, is not good either as a plea of payment or of accord and satisfaction (.Dedrick v. Lehmann, 9 Johns. R. 333), and could not be received in evidence under a plea of payment. Mechanics' Bank v. Hazard, 13 Johns. R. 353; Seymour v. Minturn, 17 ibid. 169; Johnson v. Brannan, 5 ibid. 271.
II. A debt by speciality cannot be satisfied by a lower form ..of security from the debtor himself. Worthington v. Wigby, 3 Mngh. N. 0. 454; Waydell v. Luer, 5 Hill, 450 , 453; Mitchell v. Hawley, 4 Denio, 414 ; See Gunn v. McAdam, 2 Iredell Eq. 79.
III. A debtor’s own promise to pay, even for tbe full amount, though by express agreement taken in full payment and satisfaction of the debt, cannot per se operate as payment or satisfac- ' tion of the prior indebtedness. See the following cases: Hughes v. Wheeler, 8 Cow. 79 ; Booth v. Smith, 3 Wend. 68 ; Frisbee v. Learned, 2 Wend. 452 , per Cowen, J.; Conlcling v. King, 10 Barb. 875 ; Cole v. Saclcett, 1 Hill, 516 ; Waydell v. Luer, 5 Hill, 448 ; S. C. 8 Denio, 410 ; Hlwood v. Diefendorf 5 Barb. 408 ; Idving-ston v. Badcliff, 6 Barb. 201 ; Gouro v. Port Henry Iron Go., 12 Barb. 27 .
IY. There being no consideration for the alleged agreement to accept a partial payment in satisfaction of the judgment, there must have been either a satisfaction or a release under seal, to discharge the defendant. Seymour v. Minium, 17 Johns. R. 169; Dewey v. Derby, 20 ibid. 462; Jackson v. Stackhouse, 1 Cow. 122 ; Dezeng v. Bailey, 9 Wend. 336 ; Barnard v. Daxling, 11 ibid. 28 ; Tunick v. Greene, 5 ibid. 455 ; Mitchell v. Hawley, 4 Denio, 414 .

This action is brought upon a judgment for $508.79. The defendant sets up in his answer that

p. 177
by agreement with the plaintiff’s assignors be paid $125 in cash, and gave bis notes for $150, in satisfaction and discharge of the’ judgment. To this the plaintiff demurs. The payment of part of a debt, and giving the debtor’s note for part of the balance, can never discharge the whole indebtedness without a release.

♦ The debtor’s note amounted to nothing. He only agreed by it to pay at a future time what he was bound to pay at the present moment, and afforded no new consideration for any contract .at the time. The giving of notes of other persons might have a different effect. See Mitchell v. Hawley, 4 Denio, 411 ; 8 Cow. 79 ; 3 Wend. 68 ; Cole v. Sackett, 1 Hill, 516 ; and in Waydell v. Luer, 5 Hill, 448 , and 3 Denio, 410 , where this question was fully examined; and it was conceded by all the judges that mere note of the debtor would not discharge a precedent debt, though it might suspend the remedy. 3 Bingh. N. C. 454.

It is said that a difference exists between this case and those above referred to, because the contract was made with Henry Hurd. Without expressing any opinion upon the question, whether the giving of the debtor’s note to a third person, although for a smaller amount, would operate to discharge the original indebtedness either in whole or in part, it is sufficient for this case to say, that the answer admits that Henry Hurd was acting for and on behalf of the plaintiff, and as his attorney. His acts, therefore, were the acts of the plaintiff, and the notes, although made payable to Henry Hurd, were, in fact, the property of the plaintiff, and payable to him.

It was unnecessary to prove any demand on behalf of the assignee, or refusal to pay of the debtor. The case cited is not in point. It only applies to cases where the defendant received the money sued for in the capacity cf trustee, and in which a demand might have been as necessary for the assignor as for the assignee.

The order on the demurrer made at special term should be affirmed.

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