Rogers v. Ball

Trippe, Judge. 1. An agreement by a creditor to receive less than the amount of his debt, if it has been actually executed by the payment of the money, is an accord and satisfaction : Code, section 2881. • We do not see why this should not apply to the case of a claim by one person against another for usury paid by the former to the latter. 2. A mere deduction made by a creditor at the time a debt [23] is settled of a part of the usury included in it, does not amount to an accord and satisfaction, even though it be agreed by the parties that the deduction is to be in satisfaction of the borrower’s rights, founded on the usury. The borrower is still, in the eye of the law, in vinculis, when such agreement is made. His creditor still holds the rod over him, and the usurious claim is outstanding when his consent is given : See Schroepel «s. Corning, 5 Denio, 236. 3. And this might be true if the usurious debt be paid in property, even though an addition is put upon the price thereof, on an agreement that the advanced price is in satisfaction of the borrower’s claim on account of usury, provided such addition to the value or price of the properly is not equal to the amount of usury in the debt. If it were not so equal to the usury, it would practically be equivalent only to a deduction of a part of the usury. For if the whole debt were $1,500 00, of which $500 00 was usury, and the creditor took property worth by agreement $1,400 00, at the price of $1,600 00, it •would be nothing more than a remission of $200 00 of the debt, leaving $300 00 of the usury which had been paid in the transaction. But if such property be estimated as worth in real value $1,600 00, and it is agreed that the creditor shall give the debtor $1,800 00 for it in satisfaction of his debt and of any claim for usury paid, and the debtor’s note is surrendered, and he takes the creditor’s obligation for the $300 00 in excess, and subsequently carries out this agreement by receiving the money for the creditor’s note, it would be the same as if he, the debtor,- did at that time accept $200 00 in accord and satisfaction of all the claim for usury paid; that is, it would be as if the debtor had paid $500 00 of usury, and afterwards made the accord and satisfaction. The debtor would not then be in duress, for he would have become the creditor. It might be that he would not be bound by the contract before the $300 00 was paid to forego any claim for the other portion of the usury; but even if he could repudiate it before payment and assert his full claim, yet he could not fully ext cute the contract by [24] receiving the amount agreed on, and then deny the legal effect of it as an accord and satisfaction. If there was a locus pcenitentice it was lost after full performance on both sides. The right was lost when the money was paid and accepted under a contract that it should be a discharge. A compromise, or mutual accord and satisfaction, is binding on both parties: Code, section 2882, and it becomes binding when it is performed by both. The testimony on this point was contradictory. There was direct and positive evidence on the one side that such agreement never was made, and on the other that it was both made and executed. That was a matter to be decided by the jury. "With their finding the judge who tried the case would not interfere, and we do not feel authorized to say his discretion was abused. Judgment affirmed.