Moss v. Shannon

INGRAHAM, First Judge. — This action is brought upon a judgment for $508.79. The defendant sets up in his answer that [177] by agreement with the plaintiff’s assignors be paid $125 in cash, and gave bis notes for $150, in satisfaction and discharge of the’ judgment. To this the plaintiff demurs. The payment of part of a debt, and giving the debtor’s note for part of the balance, can never discharge the whole indebtedness without a release. ♦ The debtor’s note amounted to nothing. He only agreed by it to pay at a future time what he was bound to pay at the present moment, and afforded no new consideration for any contract .at the time. The giving of notes of other persons might have a different effect. See Mitchell v. Hawley, 4 Denio, 411 ; 8 Cow. 79 ; 3 Wend. 68 ; Cole v. Sackett, 1 Hill, 516 ; and in Waydell v. Luer, 5 Hill, 448, and 3 Denio, 410, where this question was fully examined; and it was conceded by all the judges that mere note of the debtor would not discharge a precedent debt, though it might suspend the remedy. 3 Bingh. N. C. 454. It is said that a difference exists between this case and those above referred to, because the contract was made with Henry Hurd. Without expressing any opinion upon the question, whether the giving of the debtor’s note to a third person, although for a smaller amount, would operate to discharge the original indebtedness either in whole or in part, it is sufficient for this case to say, that the answer admits that Henry Hurd was acting for and on behalf of the plaintiff, and as his attorney. His acts, therefore, were the acts of the plaintiff, and the notes, although made payable to Henry Hurd, were, in fact, the property of the plaintiff, and payable to him. It was unnecessary to prove any demand on behalf of the assignee, or refusal to pay of the debtor. The case cited is not in point. It only applies to cases where the defendant received the money sued for in the capacity cf trustee, and in which a demand might have been as necessary for the assignor as for the assignee. The order on the demurrer made at special term should be affirmed.