Hayes v. . Davidson

Settle, J. This case is before us by appeal from the ruling of his Honor, susmining the demurrer to the answers of the defendants. The answer of the Davidsons admits several allegations of the complaint; and amongst others the 6th, to wit: “that after the discharge of all the other debts specified in the said deed, there remained in the hands of the said trustees a fund— the proceeds oí the property conveyed by said deed, amply sufficient to pay and discharge the debt due to the plaintiff as administrator.” But they allege that the plaintiff had agreed with them (the trustees) “to compromise his debt on as favorable terms as any of the other creditors would compromise upon.” If the plaintiff' had by his promise to compromise and take less than the whole of his demand, induced any other creditor to accept a composition and discharge the defendants from further liability, he could not afterwards enforce his claim, since it would be a fraud upon that creditor. Wood v. Roberts, 2 Starke’s Rep., 417. But the acceptance, or the agreement to accept of a less sum, does not bar a demand for a *575 greater, when there is no other consideration. McKenzie v. Culbreth, 66 N. C., 534; Bryan v. Foy, 69 N. C., 45. And, in our ease, it does not appear that the other creditors acted in concert with the plaintiff, and released any portion of their debts in consequence of his promise to do so, nor does it appear that they were prejudiced or surprised by the refusal of the plaintiff' to accept less than his whole debt. The trustees seem to have approached each creditor separately, and to have compromised with each, upon such terms as they could obtain. And each creditor seems to have acted on his own judgment and sympathies, independently of what the others might do. The promise being unsupported by a consideration, is not obligatory; and the plaintiff, whether from caprice or any other motive was at liberty to refuse taking less than his whole demand. But as the defendant, Barringer, is only liable secondarily, (having acquired a portion of the trust fuud with notice,) the judgment of the Superior Court must be modified, so as to hold him liable for only such portion of the debt, if any, as cannot be made out of the trustees. Let judgment be entered here, in accordance with this opinion. Per Curiam. Judgment accordingly.