Acker & Chapman v. J. D. & D. A. Phœnix

Headnote

Where "certain creditors agreed to compound with their debtors, and to re* ceive twelve shillings in the pound in foil satisfaction of their respective debts, and it was expressly provided in the composition deed that it should not be binding on any of the creditors executing the same, until all and every creditor of such debtors had executed the deed; Held, that the debtors could not vary the terms of the written agreement, by showing that there was a parol understanding between them and those who executed the composition deed, that certain creditors, denominated confidential creditors, were not to execute the same, but Were to be paid by the debtors in full.

An agreement by a creditor to accept from his debtor a part of his debt in full satisfaction for the whole, is without consideration and void, unless the agreement is in writing, and is also under seal, which imports a consideration.

The court of chancery will not aid a párty who is seeking the specific performance of a mero voluntary agreement, which is neither founded on a good or a valuable consideration.

The bill in this cause was filed to compel a specific performance of a composition agreement, between the complainants and the defendants, as their creditors. By the composition deed, which was dated the 18th of April, 1832, and executed by the defendants and several, other creditors, the creditors severally agreed to accept of the complainants’ securities at the rate of twelve shillings in the pound, in full satisfaction of the debts due to them respectively torn the complainants jointly, or from Henry Acker separately. The amount of such composition was payable in nine, thirteen, and eighteen months; and was to be secured by satisfactory notes,

to be delivered to the respective creditors before the 15th of May; and to be approved of, on behalf of the creditors, by an individual named in the deed. The deed contained a proviso, that it should not be binding upon any of the par- . ties who executed the same, until all and every of the creditors of Acker & Chapman, jointly, and of Acker individually, sealed and subscribed the same. The complainants, in their bill, after setting out the deed of composition, alleged that all the creditors did subscribe and seal the same, except certain creditors usually called confidential. That the composition deed was executed by the defendants and the other parties thereto, with full knowledge of the existence of such confidential debts; and with an understanding between the persons executing the same, and the complainants, that the confidential debts were to be first paid, and that the deed of composition was not to be executed by the confidential creditors. That the complainants procured the notes for the creditors, as mentioned in the deed of composition, within the time prescribed; and that the same were approved of by the individual therein mentioned, and were accepted by all the creditors except the defendants. And that the notes were tendered to the defendants within the time prescribed; but that they refused to receive the same. The complainants further alleged, that the defendants, previous to the execution of the deed of composition, bad commenced suits for the recovery of their debts, and that when the deed was executed, in the city of New-York, they gave a letter to the complainants directed to the attorney who was prosecuting the suits, requesting him to discontinue such suits, upon payment of the costs by the complainants, unless he liad previously obtained security for the debts. That the complainants afterwards delivered this letter to the attorney of the defendants and offered to pay the costs, and requested him to discontinue the suits ; but that the attorney, having previously received another letter from the defendants countermanding the order to discontinue the suits, declined doing so until he had further directions from his clients. And that shortly afterwards the complainants received a letter from the attorney informing them that his clients instructed him to proceed in the suits, unless the debts were paid or secured without de

lay. It appeared also by the bill, that the present defendants recovered judgments in those suits a few days afterwards for the amount of tlieir debts, and took out executions thereon. The complainants, therefore, prayed for a specific performance of the agreement of composition; that the judgments and executions might be discharged; and for an injunction,to restrain the defendants from further proceedings thereon.

The defendants put in a general demurrer to the bill, for want of equity.

contended that the ■complainants had no rights, as against the defendants, either at .law or equity; that they could not contradict the composition agreement by parol evidence ; that the verbal agreement, set up in the bill, was without consideration and void. And that if the complainants had any remedy, it was by an application to the supreme court to set aside the judgments recovered by the defendants. He cited 1 Dunl. Pr. 336 ; Lansing v. Eddy, (1 John. Ch. Rep. 49 ;) Carter v. Utica Ins. Co. (Id. 463 ;) Wollam v. Hearn, (7 Ves. 217, 218;) Higginson v. Clowes, (15 Id. 516 ;) Stevens v. Cooper, (1 John. Ch. Rep. 425, 429;) Livingston v. Tompkins, (4 Id. 415;) Newkirk v. Willett, (2 Caines’ Cas. in Error, 296;) M’Intyre v. Mancius, ( 16 John. Rep. 592 ;) Seymour v. Minturn, (17 Id. 169;) Harrison v. Close, (2 Id. 448.)

cited 2 R. S. 135; King v. Baldwin, ( 17 John. Rep. 384 ;) Clason v. Morris, (10 Id. 530 ;) American Ins. Co. v. Fisk, (1 Paige’s Rep. 90;) Lattimer v. Harsen, ( 14 John. Rep. 330 .)