Harrison v. Wilcox — 2 Johns. 449

Majority

p. 448

Harrison against Close and Wilcox.

Headnote

O. andW. gave a joint and several promissory noto to H. for 71' dollars. II. made .a verbal agreement with W. that if he would pay him 21 dollars 55 cents, he would not call on Vy . for tho payment of the note, but would look to C. for the rea» 1ÜUC w . (hereupon, paid the 21 dollars and 55 cents, which was indorsed on tlia note. H. afterwards bro’t ano ’tion on the note aga'nsi. C. and. W, and (hey pleaded the agreement with H. and the acceptance of 21 55 cents, in bar of the action. It was held, that the agreement between II.& W. and the acceptance of the 21 dollars 55 cents, was

This was an action of assumpsit, oil a promissory note, dated the 3d May, 1804, by which the defendants promised jointly and severally, to pay, six months after date, to O. S. or bearer, 71 dollars, with interest. The defendants pleaded non-assumpsit, and gave notice that they would prove on the trial, that Close and Wilcox paid and satisfied the note to O. S. the bearer, on the 4th October 1805, and farther, that before the suit, they paid to the said O. S. 21 dollars and 55 cents in full satisfaction and discharge of the note, which sum was accepted by the said O. iS. in full satisfaction -and discharge of the said note; and also, that they paid the sum of 21 dollars and 55 cents to the plaintiff in full satisfaction and discharge of the note, which was accepted in full satisfaction by the plaintiff. The cause was tided, at the Columbia circuit in December, 1808, before Mr. Chief Justice Kent. There was an indorsement on the noteas follows: “Received on this note, October 4th, A. D. 1805, 20 dollars and 55 cents.” It was proved at the trial, that Close gave Wilcox (who was only surety for him in the note) 2! dollars and 55 cents, which Wilcox paid to the plaintiff, who declared at the time, that if Wilcox would pay him that sum, he would not call on him for the payment of the note, but would collect the residue of Close. On this evidence, the plaintiff was nonsuited. A motion was made to set aside the nonsuit.

E. Williams, for the plaintiff, contended,

that the parol agreement was without consideration and void, and that in no form of pleading, could a payment by one of two (defendants of a part of the debt, and a promise by the plaintiff not to call on him, be held a satisfaction of the debt, so as to bar an action against both defendants.

p. 449

nosatisfaction of the note, nor bar to the plaintiff’s action.

Rudd, contra.

Here was a good consideration for the promise, and that is enough to support the plea. It is not necessary that the whole debt should be the consideration ; and an accord executed, is a good bar, though only for a part of the debt. In Lynn v. Bruce,^[3] it was admitted, that had the composition been paid, it would have been a satisfaction; though an accord executory, or a mere agreement to accept a less sum, was no bar.

Williams, iu reply.

An accord and satisfaction must be pleaded. The defendant must prove not only an accord, but a satisfaction, and that the original debt is discharged. Admitting the notice sufficient, still there is no proof of an accord and satisfaction. There was no agreement that the original debt should be discharged, but merely that the plaintiff would resort to Close for the residue. There is no case to be found to support the de-fence set up; all the authorities are in favour of the plaintiff.^[2]

delivered the opinion of the court. An agreement never to sue a sole debtor, made on a valid consideration, or a covenant not to sue, has been justly held to operate as a release, to avoid circuity of action ; not that such agreement or covenant is in fact a release, but that it may be pleaded in bar, as between those parties, and it operates quasi a release. The case of Cuyler v. Cuyler,^[1] was decided on this principle. But where there are two obligors, or promissors, a covenant [*]not to sue one of them, so far from releasing the demand, has been repeatedly held not-to protect the other obligor, and that then its operation is as a covenant.* But in this case the matters given notice of, with the plea, do not embrace the case of Wilcox, the defendant. The notice sets up the agreement not to call on him for payment, but to look to Close for the residue, as a full satisfaction and discharge of the note. Now, clearly, the agreement between the-plaintiff and Wilcox, is wholly different. An accord and

‡ ‡ Ante, 186.

p. 450

satisfaction operates as a final bar to the demand, proof here, if proper notic.e had been given, would not have barred the plaintiff’s remedy against Close; a very distinct case, therefore, is made out by the evidence, from the one set up in the notice. The case of Fitch v. Sutton,^[2] and the authorities there cited, go to show, that the payment of the 21 dollars and 55 cents in this case, without a release by deed, is no bar to the demand, and that the promise to look only to Close, is a nudum pactum. We are clearly of opinion, that the nonsuit must be set aside. The costs are to abide the event of the suit. The

Rule granted.

† † 5 East, 232.