Bowker v. Harris

The opinion of the court was delivered by Barrett, J. The case shows that the defendant, being insolvent, and indebted to the plaintiff in the sum of about one thousand six hundred dollars, on promissory notes, by agreement with the plaintiff, in March, 1852, paid him one hundred dollars in money, aud gave him a note signed by himself as principal and by his wife as surety, for two hundred dollars, payable in a year, in full for what the defendant then owed the plaintiff; and thereupon the plaintiff gave up to the defendant the said notes which he held against the defendant; and that said note for two hundred dollars was paid out of the avails of the wife’s real estate, which she voluntarily appropriated to that purpose. This suit is brought to recover the balance of that original indebtedness. I. One ground of defence is the payment of said three hundred dollars in the manner above described, in satisfaction and discharge of said indebtedness. [426] Without discussing, at this point, the question, whether, upon the notes being given up, a suit could thereafter be maintained upon them, it may be premised that the rule is well settled that the mere payment of a less sum, in money, upon the agreement that the same shall be in full satisfaction and discharge of a larger money debt, constitutes no defence to an action to recover the unpaid balance. But it is equally well settled that the doing of something besides the mere payment of money, and which the debtor was not legally bound to do, either as to the kind of payment made, or security given, which the creditor agreed to accept in full satisfaction and discharge of the debt, and in pursuance of said agreement, did accept it, does constitute a valid defence to such suit. The law of the subject is learnedly classified, and its application to different classes of cases indicated in Wheeler v. Wheeler, 11 Vt. 67, in a manner that has thus far been satisfactory to the court, and the present court see'no occasion to be dissatisfied with it. In that classification, under the second head it is said, “if a debtor contracts with one or all of his creditors to procure a friend to secure or pay, out of his own means, part, in satisfaction of a whole debt, and it is done, such creditor can never recover more, even of the debtor himself. It would be a fraud on the third person who paid for the entire release,” etc. The present case falls within the principle here announced. Though it may be true that the note for two hundred dollars could not have been enforced against the wife, still it was signed by her in good faith as surety, and in the supposition of the parties, it was valid against her, and it was in fact paid by her out of property of her own, in which the husband had no such interest or right as to render it available to the creditor of the husband. We can not regard the giving of that note, and the payment of it by the wife, otherwise than as answering to one substantial ground, on which the transaction should be held as conclusive against the right of the creditor to recover the balance of the original debt, viz: that it was procuring a payment to be made by a third person, as to whom it would be a fraud to seek to enforce payment of the balance. II. The foregoing views of the case, render it unimportant to pass upon the question arising under the plea of the statute of lim [427] itations. Yet as that question has been fully discussed at the bar, and as the court are unanimous in an opinion upon it, it is proper to express that opinion. In the uncertainty which exists as to the times of the various interviews, named in the report of the referee, between the plaintiff and the defendant, prior to March, 1852, we give no heed to those interviews, and regard only what occurred in the payment of the one hundred dollars, and the giving of the note for two hundred dollars. It is claimed by the plaintiff that this constituted such an acknowledgement of the existing indebtedness, as, within the principle of the decided cases in this state, will take this case out of the operation of the statute. "We regard the rule of law on this subject to be comprehensively, and with just discrimination, laid down in the case of Phelps v. Stewart, 12 Vt. 256. Under that rule, in its legitimate application, we are fully of the opinion that the payment made by the defendant in this case did not operate as an acknowledgment of an existing indebtedness. The payment was made to end the indebtedness, not as recognizing a still subsisting balance. Both parties so understood and designed it at the time it was made. Instead, therefore, of indicating a willingness on the part of-the defendant, to stand liable for the balance claimed, the whole purpose was to end such liability. It would be doing violence to the obvious reason and sense of the transaction, to imply from it a promise to pay. The implication is directly the other way. It is difficult practically, and in point of principle, to distinguish this case from that of Aldrich v Morse, 28 Vt. 642. In any view we are able to take of the case, we think the judgment of the county court was correct, and it is therefore affirmed.