Draper v. Hitt

Accord and Satisfaction. Payment. Promissory Note. Tender. Where the holder of a promissory note surrenders it to tho maker, and takes one of less amount in satisfaction, it is a full discharge, and no action can he maintained for the unpaid portion. The surrender is equivalent to a roloase under seal. A tender made subject to the condition that if the party take tho amount offered, it is to he in full payment of all his claims, is invalid.

General assumpsit. The case was referred and the referee reported as follows: On the 5th day of February, 1863, the plaintiff held the promissory note of tho defendant, which was dated May 4th, 1857, and given for the sum of sixty dollars and interest, and which was given on a good consideration and delivered the plaintiff on tho day of its date. On the said 5th day of February, the plaintiff applied to the defendant to pay said note, but the defendant being-unable to pay it, proposed to the plaintiff to give him a new note for forty dollars, payable in two years with interest, and in satisfaction of the note first above referred to. The plaintiff accepted said proposition, and thereupon the defendant executed and delivered the note hereto attached, when the plaintiff gave up to the defendant the said note of sixty dollars. On the day of the commencement of this suit, and after the writ in this cause had been served, the said defendant offered and tendered to the plaintiff, but subject to the condition that if the plaintiff took the amount so offered, it was to be in full payment of all claims of the said plaintiff, the ¿mount of the note attached with the accrued interest thereon up to that date, together with costs for writ and service, which the plaintiff refused to receive, claiming that his demand was more than the amount so offered him. The money thus offered the plaintiff was returned into court by the defendant, and is now in the hands of the clerk. Before me, the plaintiff claimed on the facts aforesaid, that he was entitled to recover the amount of the note first above referred to and given up by him as aforesaid ; but I held otherwise, and decided and so find, on the aforesaid facts, that the plaintiff is entitled to recover the amouut of the note attached with interest thereon, computed up to this 5th day of February, 1867, and amounting to forty-nine dollars and sixty cents. But if the court, upon the facts above reported, should hold and decide that the plaintiff is entitled to recover the amount of the note herein first above referred to, and given up to the defendant, then I find that the plaintiff recover of the defendant the amount of said note with interest, computed up to said 5th day of February, 1867, and amounting to ninety-five dollars and ten cents. On the report of the referee, filed in said cause, the court, at the September term, 1867, Ainsworth, Assistant J., presiding, rendered judgment, proforma, for the sum of ninety-five dollars and ten cents damages, and his costs, to which judgment the defendant excepted.