Warren v. Skinner

Ellsworth, J. It is no longer a question, whether payment of part of a debt is a satisfaction of the whole, either considered as payment, or as an accord and satisfaction. The payment of 100 dollars, is not, of itself, the payment of 200 dollars; nor is it an accord and satisfaction; for an accord is an agreement; but there is no agreement, without a consideration; and receiving part only, is no consideration for an agreement not to collect the rest; it is a mude pact. These principles are settled in the cases cited at the bar; we would particularly refer to Cumber v. Wane, 1 Stra. 426. Heathcote v. Crookshanks, 1 Term R. 24. Good v. Chees-man 3. B. & Adol. 328. (22 E. C. L. 85.) Fitch v. Sutton, 5 East, 230. Acker v. Phoenix, 4 Paige, 305. Boyd v. Hitchcock. 20 Johns. R. 76. 78. Chitt. Cont. 747. 1 Smith's Lead. Ca. 249. 2 Greenl. Ev. 28. 493. (3d ed.) The same cases show, that while the principle is as already stated, there are important exceptions, or rather, they show in what cases an agreement to pay, or the payment of part, is an accord and satisfaction. In the excepted cases, the agreement is not a nude pact, but rests on a new and adequate consideration; as where the debtor pays a part of the debt before it is due, or at a different place, or in a collateral article, agreed to be received in full payment, or in some manner not required by the original contract: so when there is an assignment of property, creating a fund for distribution among creditors, or a new note for part, with security: so where creditors agree with their debtor, that they will discharge him, upon his paying or securing a percentage of their debt, [562] that he may start anew in business, and the debtor fulfills, or does his part towards fulfilling, such agreement; it has been held, in some instances, especially in Good v. Cheesman, before cited, that this is a good bar to a recovery ; the agreement, though unexecuted, and therefore, in strictness, no satisfaction, still, as the debtor had done all he was obligated to do, and had given his creditors a new and valid contract or security for the percentage, it was held to be sufficient. And generally, an arrangement entered into by creditors, upon the insolvency of their debtor, to forbear to sue him, or wholly to relinquish the balance of their debts, if the debtor will pay, and does pay, the percentage agreed upon, the debtor has a right to set up this arrangement as a full discharge ; otherwise, the creditor, who breaks the agreement with his debtor, would perpetrate a fraud upon others, scrupulously adhering to the arrangement: and certainly, if property has been assigned by the debtor, under such an arrangement, the defence is most perfect. In Evans v. Powis, 1 Welsby, H. & G. 601. Parke, B. says, in substance, that the mutual agreement among creditors with their debtor, to take a part of their debts, is a valid agreement, as each agrees to give up a part of his debt, in order to bring about a common object, which is a sufficient consideration to support the agreement; and if this agreement is performed, or performance is tendered according to the terms of the agreement, it is a good accord and satisfaction. But if it is not performed, nor performance tendered, it is a mere accord or agreement, and no satisfaction, and is no bar to an action on the original indebtedness, which still remains. Where, however, the agreement is expressly received in satisfaction of the debt, as it may be, and is sometimes, then, the agreement alone may be pleaded as an accord and satisfaction. The language in part, is, “ Both creditors having had a right to be paid in full, and each a chance of being paid more than the other, if he pressed the debtor, each mutually agrees to forego that right and chance, and be content with less. The engagement of one creditor to take a smaller sum, is the consideration for the engagement of the other to do the same.” There is another class of cases, constituting an exception to the general rule, as where damages being in dispute or un563 liquidated, are settled or liquidated, by agreement, or where the parties make a compromise; here the adjustment or compromise is a consideration for the new promise, or accord and satisfaction. The other claim of the defendant, that the delivery of cloth in payment of the balance, on one of the fifty dollar instal-ments, was a payment of the debt in a collateral article, and thus a good accord and satisfaction of the whole original debt, is without foundation. It was not received on the original debt, but as cash on the last fifty dollars. We do not advise a new trial. In this opinion the other Judges concurred* New trial not to be granted.