Savage v. Everman

The opinion of the court was delivered, January 29th 1872, by Sharswood, J. Anciently, it seems to have been considered that nothing could be pleaded to an action on a judgment which was matter in pais and not of record. Thus even payment was held (30 Eliz.) not to be a good plea: Ordway & Perote’s Case, 2 Leon. 213.' Of course accord and satisfaction fell within the same category: Littleford v. LeMayn, Cro. Jac. 579. For remedy, it was enacted by the statute (4 Anne, c. 16, sect. 12), that “ where any action shall be brought upon any single bill, or where action of debt or scire facias shall be brought upon any judgment, if the defendant hath paid the money due upon such bill or judgment, such payment shall and may be pleaded in bar of such action or suit.” This statute, as to this and some other sections, was reported by the judges of the Supreme Court as in force in this state: 3 Binn. 625; Roberts’ Dig. 45. There is a similar statute in New Jersey: Gulick v. Loder, 1 Green 68. It is said in 2 Saund. on PL & Ev. 115, that accord and satisfaction cannot be pleaded under this statute. He cites 4 Moore 165, but that must be a mistake, as it contains nothing to the point. Whether under this statute or at common law, the American authorities, without a single exception that I can find, maintain the contrary doctrine — that accord and satisfaction is a good defence to an action or other proceeding on a judgment: Witterby v. Mann, 11 Johns. 568; Boyd v. Hitchcock, 20 Id. 76; Le Page v. McCrea, 1 Wend. 164; Brown v. Feeter, 7 Id. 301; Evans v. Wells, 22 Id. 224, 341; La Farge v. Herter, 11 Barb. S. C. Rep. 159; Campbell v. Booth, 4 Gill. 29; McCullough v. Franklin Coal Co., 21 Maryland 256; Reid v. Hibbard, 6 Wis. 175; Jones v. Rahcom, 3 Ind. 327; Farmers’ Bank v. Groves, 12 Howard U. S. Rep. 51. In the recent case of Maute v. Gross, 6 P. F. Smith 250, it was assumed, apparently without question, that such was the law in this state. There the defendants confessed a judgment in favor of the plaintiffs under a cotemporaneous agreement by them, that they would accept in satisfaction lubricating oil of a certain quality, according to sample. The only question was, whether oil of that quality had been furnished, and an issue had been directed to determine that fact. It is certainly within the spirit, if not the letter of the statute of 4 Anne, to admit as a good plea in bar whatever in law or equity amounts to a discharge and satisfaction of the debt secured by the judgment. A text [319] writer of great respectability so states it: 2 Troubat & Haly 13, edition of 1853. The simple, intelligible and well-settled rule on this subject is, that wherever a defence exists, which has arisen since the judgment, and which could not therefore have been available at the time it was rendered, it may be set .up in any subsequent proceeding: Cardesa v. Humes, 5 S. & R. 65; Thatcher v. Gammon, 12 Mass. 270. Upon this principle, the evidence offered by the defendants ought to have been received. . It was admissible under the plea of payment with leave to give the special matter in evidence: As no objection was made, we are bound to presume that due notice was given, or was waived. The matter contained in the offer could not have availed the defendants as an answer to the demand of the plaintiff in the original suit. All that took place before the rendition of the judgment was a mere accord without satisfaction. An agreement to accept something collateral to the debt is without consideration, and therefore not binding. What made it effectual was actual acceptance by the plaintiff, and this was not until after the judgment: Hearn v. Kiehl, 2 Wright 147. Here, by the accord, a house and lot was agreed to be accepted in satisfaction. Afterwards, and in pursuance of this accord, it was actually conveyed to the plaintiff and accepted by him. It matters not how the title was conveyed, if it was under and in pursuance of the original accord. The learned judge below appears to have thought “ that facilitating the recovery of a just demand, the defendant merely hastened an event which was in contemplation of law inevitable,” While this, certainly, is a sound reason for holding that a mere accord founded upon such a consideration would not be binding, it is inapplicable when the accord is actually executed by acceptance in satisfaction. Even in this case, the accord must certainly be presumptively advantageous. Therefore, acceptance of a less sum in money than the amount due is not good. But if it may be advantageous, the extent of advantage the court is not competent to measure. By gaining time, the plaintiff may have secured a priority over others, and at all events he became possessed of something of value sooner than by the due course of law he otherwise would. Indeed, without an acceptance of service by the defendants in New Jersey, the only process by which their property in that state could have been reached, must have been something in the nature of a foreign attachment— a proceeding against ap absent debtor, and the policy of all laws is to interpose in such a proceeding more than the usual delays. It is well settled that the value of a collateral thing accepted in satisfaction of a cause of action is of no importance upon the question of its sufficiency: Hardman v. Bellhouse, 9 M. & W. 596; Sibree v. Tripp, 15 Id. 22. In Very v. Levy, 13 Howard U. S. Rep. 345, it is said by Mr. Justice Curtis: “ An agree [320] ment to give a less sum for a greater, if the time of payment be anticipated, is binding, the reason being, as expressed in Pennel’s Case, 5 Co. 117, that peradventure parcel of the same, before the day, would be more beneficial than the whole sum on the day: Co. Litt. 212 b, Com. Dig. Accord B. 2; Brooks v. White, 2 Met. 283. And when the time of payment is. not anticipated, the law deems the delivery of specific articles a good satisfaction of a money debt, because it will intend them to be more valuable than the money to the creditor, who has consented to the arrangement : Bac. Abr. Accord A.; Pennel’s Case, 5 Co. 117; Booth v. Smith, 3 Wend. 66; Kellogg v. Richards, 14 Wend. 116; Steinman v. Magnus, 11 East 890; Lewis v. Jones, 4 B. & C. 513.” Nor can it be maintained with any show of reason, that because the property was purchased at the sheriff’s sale for a sum less than the amount of the judgment, the value of the thing has thus been legally ascertained, and that amount being credited on the judgment it stands therefore on the same footing as an acceptance of a part of a debt which cannot in law be a sufficient satisfaction of the whole. The sale in this case was a mere formal method of passing the title — the price being of no more consequence than would have been the consideration named in a deed by the defendants to the plaintiffs; he having in pursuance of his accord accepted the house and lot in full satisfaction of the judgment. It was not necessary that the defendants should offer to show that they had abstained from bidding. It is questionable whether they had any right to bid. They were perfectly safe under the accord in allowing the plaintiffs to purchase at any sum, even a merely nominal one. This course of reasoning evinces that the special plea was good, and as the demurrer admitted the facts to be true, the defendants below were entitled to judgment. In general this court will enter such a judgment on the whole record as the court below should have entered. But we are not bound to do so. We may remit the record to the court below for further proceeding where it is possible that otherwise injustice may be done. The replication to the special plea appears to have been withdrawn and the demurrer filed while the case was under trial, and as the learned judge had ruled out the evidence offered, it is highly probable that this course was adopted on the strength of his opinion, if not at his suggestion. Under these circumstances we think the learned court below should decide whether the plaintiff below should have leave to withdraw his demurrer, and a venire de novo awarded. Judgment reversed, and record remitted for further proceedings.