Geiser ex rel. Knaval v. Kershner

Martin, J.,

delivered the opinion of the court.

The record in this case has been amended by consent. Replications are considered to have been filed to the pleas, and issues made up for the jury.

This case is within a very narrow compass, the act of 1825 confining the appellate court to the points decided by the court below.

To an action of debt on a single bill for $100, dated the 26th of May, 1817, the defendant relied on two pleas—■ payment to the assignee of the bill; and accord and satisfaction.

To sustain the second plea, evidence was offered to the jury, that the defendant, on the 3d of April, 1824, gave to Benjamin Ferrel, the agent of Knaval the assignee, an order on Jeremiah Mason for the sum of $90 76, towards the payment of the single bill, on which this action was instituted. That the said order was received by the agent, to be in payment of the bill, provided Mason accepted it, but if it was not accepted, it was to be returned to Jacob Kershner, the brother of the defendant. Mason did refuse to accept it, and the agent afterwards, perhaps in the course of two or three months, informed Jacob Kershner of it, and offered to return it to him, but he refused to receive it.

The court puts the plaintiff’s right to recover upon the notice he was bound to give to the defendant, of the nonacceptance, and non-payment of the order. They say in substance, that if the jury believe the evidence, the defendant had not due notice, and therefore the plaintiff cannot recover. It appears to this court, that whether the defendant had, or had not notice, could not affect the plaintiff’s right to recover in this case.

*309 The contract between the parties—the terms upon which the order was given, and received, was a waiver of ordinary notice to the defendant. The order was not to be considered as affecting the plaintiff’s claim unless it was accepted, and if not accepted, no notice was required to be given to the defendant, but the order was to be returned to Jacob Kershner, his brother. The question whether the order was returned,, to the brother in due time, according to the terms of the agreement, is not presented ; but the court say, the plaintiff is not entitled to recover, because the defendant had not due notice, See. Suppose on the day Mason refused to accept the order, it had been returned to Jacob Kershner, in strict compliance with the agreement of the parties, upon what principle could it be said, the plaintiff was in default? He had done all the agreement required him to do, and yet, according to the opinion expressed by the court, he would not be entitled to recover, because the defendant had not notice of it.

Let us take another view of this case. The court says the plaintiff is not entitled to recover, because due notice was not given to the defendant. Suppose no notice had been given to him, and there never had been an offer to return the order to Jacob Kershner; would the facts as set-out in the plea of accord and satisfaction be a legal bar to the plaintiff’s claim?

The cause of action as before stated, was a single bill, under seal for $100, and the money had been due, for several years; when, as the plea states, an order was given for $90 76, and accepted by the plaintiff, in full satisfaction of his debt, principal and interest, it is an attempt then, to discharge a debt of $100, with interest on that sum for several years, by the payment of $90 76, because the plaintiff agreed to accept it in satisfaction.

In Fitch vs. Sutton, 5 East. 230, it was determined, that the acceptance of a less, cannot be a satisfaction in law, of a greater sum then due—nor can it operate as an extinguishment of the original cause of action. Lord Ellenbo *310 rough says, it is impossible to contend, that the acceptance of £.17 10, is an extinguishment of a debt of £50. There must be some consideration for the relinquishment of the residue ; something collateral, to show a possibility of benefit to the party relinquishing his further claim, otherwise the agreement is nudum pactum. Many cases might be adduced to sustain this doctrine—11 East. 390, Lord Ellenborough says, “ It is true, that if a creditor simply agree to accept less from his debtor than his just demand, that it will not bind him,” &c. In 17 Johns. 174 , Spencer, Ch. J. declares the cases of Harrison vs. Wilcox and Close, 2 Johns. Rep. 449. Fitch vs. Sutton 5 East. 232, and Cumber vs. Wane, 1 Strange, 426, are decided authorities to show, that the payment of a less sum of money than the real debt, will be no satisfaction of a larger sum, without a release by deed. In Boyd vs. Hitchcock, 20 Johns. Rep. 75, Justice Platt, who delivered the opinion of the court, fully recognizes this to he established law. He says, the question is, whether the third plea sets out such an accord and satisfaction as will bar the action?

The general rule is well settled, that the payment of a less sum of money than the whole debt, without a release, is no satisfaction of the plaintiff’s claim. A' mere agreement to accept less than the real debt, would be nudum pactum.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED.