Lathrop v. Page

Ames, J

Two grounds of defence are advanced as an answer to the plaintiff’s claim: first, that, by the memorandum indorsed upon the note, the plaintiff had released certain guarantors upon whom the defendant had a right to rely, and that the effect of this transaction was to release the defendant himself; and secondly, that, by the express terms of the indenture which is in the case, the plaintiff had released the defendant from all claims, including this particular one.

As to the first of these defences, even if the plaintiff had acquired any such right, legal or equitable, in the guaranty signed by Culver and others, that it was in his power to release the guarantors to the prejudice of the defendant, we do not find that he has done so. It appears that, about three months after the maturity of the note, and when, as we must suppose, the liability of the guarantors had become fixed, he received from them four fifths of the entire amount due, and gave each of them a release from the remainder. This was not the result of a general compromise with creditors, or of any arrangement to which the defendant was a party. There was no reservation of any rights against any other person, and it was nothing more than a promise, in consideration of payment of a part, to accept that part in full. The payment of part of an acknowledged debt after its maturity has often been held to be no sufficient consideration for a release, not under seal, of the remainder. It has no effect as an accord and satisfaction, and rests upon no legal or valid consideration. Harriman v. Sarriman, 12 Gray, 341 . Potter v. Green, 6 Allen, 442 . Jennings v. Chase, 10 Allen, 526 , and cases there cited.

We find it equally difficult to sustain the defence on the second ground. The indenture was made and executed in March 1877, about five months before the note became payable, and before it had been made certain that, by the failure of the previous parties to provide for it, it would ever become a debt actually due from the defendant. The indenture recites that there had been a partnership between the defendant and Cragin, which was dissolved by the death of Cragin; and that an arrangement had been made by which the plaintiff, as executor of Cragin, was to take all the property of the partnership, and pay all its debts and liabilities, and also to release the defendant *22 from all sums “ which he may be owing said copartnership, amounting to $6000 more or less.” It then sets forth that the defendant assigns all the stock of goods, wares, merchandise, securities, debts and effects, in which he has any right, &c. by virtue of said copartnership, and all his interest therein, to the plaintiff, with full power to sue for, receive and collect. The plaintiff on his part covenants that he will pay and discharge all the debts of the firm, and will indemnify and hold the defendant harmless therefrom, and that he “ doth hereby release and forever discharge the said Page from any and all sums which he is individually indebted to said partnership and to the estate of said Cragin, being $6000 more or less.” We are of opinion that this indenture was intended to provide for precisely the settlement described in the preamble to the instrument, and that it has no relation to any matters whatever, except such as belonged to or were connected with the partnership therein specifically described. This purpose of the indenture is distinctly expressed. -The sums due from the defendant to the firm, and agreed to be released, are described in the preamble, and also in the clause containing the release, as “ $6000 more or less,” and we cannot doubt that both refer to the same description of claims. Whatever the defendant owed the firm under this arrangement he owed “ to the estate of Cragin,” and there is nothing on the face of the instrument to countenance the suggestion that the use of those words was intended to introduce into the settlement a different class of claims, having no connection with the partnership. There being no evidence that the note in suit was a partnership transaction, it is not affected by the release.

The result is, that neither of the defences relied upon can prevail, and, by the terms of the report, there must be a New Trial.