Farrington v. Hodgdon

Devens, J. The plaintiffs contend that the agreement signed by them is to be construed as one to receive payment of a certain portion of their debts in a particular manner, while it did not affect the remaining portion thereof, and therefore that such portion was to be paid in the ordinary manner, and upon the terms on which the debts were originally contracted. It does not admit of this construction. The party signing agreed to “ accept ” seventy-five per cent, of the indebtedness to him which was to be paid in a manner specified, and this implied that the sum provided for was to be received instead- of the full debt. The contract was also to take effect “ provided all merchandise indebtedness accept the same settlement,” and thus distinctly recognizes that the proposed transaction is a “ settlement ” of the plaintiffs’ claims. This agreement rested also upon sufficient consideration, if it was completed and became binding, by the fact that other creditors became parties thereto, because it became part of a composition by which the creditors stipulated mutually to release a part of their claims to their common debtor, and the rights and interests of all had become involved in the arrangement. Perkins v. Lockwood, 100 Mass. 249, and cases cited. If the defendants have since done all which by this agreement to release them from their original indebtedness, by the substitution of a new contract therein specified, they were bound to do, they are now entitled to avail themselves of it in defence to a suit brought upon one of the original notes. It is argued that there was no tender of the notes proposed to be given in settlement, without which the transaction would be a mere executory agreement, and further, that there was no evidence upon which the court could properly find such a waiver of tender as would excuse this failure. It appears, however, that before December 15, at which date the interest upon the proposed new notes was to commence, the ownership and the possession of two of the three notes, which the plaintiff had assumed to settle, [458] had been transferred to Smith, and that Smith was then in a position to enforce payment of them in full, and subsequently did so ; and further, that the defendants have always been ready to give the settlement notes, if the three notes which constituted the claim of the plaintiffs were surrendered to them, or if they could be protected against the effect of this transfer to Smith. The law does not require idle and useless ceremonies. Newcomb v. Brackett, 16 Mass. 161. Webster v. Coffin, 14 Mass. 196. Clark v. Moody, 17 Mass. 145. Buttrick v. Holden, 8 Cush. 233. When, therefore, the plaintiffs had rendered it impossible on their own part to surrender the notes included in the claim they had agreed to release, it must be deemed that by so doing they waived the tender to them of the settlement notes. If one binds himself to do acts which he afterwards renders himself unable to perform, he thereby dispenses with the performance of conditions precedent to such acts. Mayne’s case, 5 Rep. 20 b. Nor were the defendants under any obligation to tender a settlement note of seventy-five per cent, on the note now in suit, after this transfer. To have compelled them to do this would have compelled them to pay much more than by their agreement they were bound to do. They were willing always to pay the difference between the amount that had been paid by the defendants on the first two notes, and seventy-five per cent, on the whole indebtedness, which was refused. The contract of the plaintiffs was an entire one; they had treated their whole claim as but a single debt, although in fact it was made up of three notes; and the court correctly ruled that the obligation to give the notes in settlement was not severable. The evidence of conversations, tending to show the understanding of parties as to the Smith notes prior to the execution of the agreement, was rightly excluded as inadmissible to vary the written contract. Even if it was known to the defendants that the plaintiffs were endeavoring to induce Smith to take these notes under their alleged sale, it was competent for them by the written agreement to contract that the defendants should be released from them, on compliance with the terms therein prescribed. As the defendants make no question as to the right of the plaintiffs to recover in this action the balance of the indebtedness, [459] after deducting from the seventy-five per cent, on the whole claim the balance due after payment of the Smith notes, no question as to the form of the action need be considered. Exceptions overruled.