Ellsworth v. Fogg

Aldis, J. I. Shattuck was apparently the owner of the botes. He had claimed to have an assignment of them, and had them in his possession. The notes were negotiable, and indorsed by the payee in blank. He claimed to have the full right to manage and control the notes, and Harvey had no knowledge that any other person had any claim to them. Nor had Harvey notice of anything that should awaken suspicion's or put him on inquiry. The fact that Shattuck was an attorney by profession — so long as he did not appear to be acting as an attorney for any other person — was not a fa'ct to awaken suspicion, or justify a refusal to deal with biin as the owner of the notes. [358] As Shat tuck claimed title, and had all the usual indicia of title, and nothing was known to Harvey to suggest a doubt upon that point, he was justified in dealing with Shattuck as the owner. II, Does acceptance of a part of the amount due on a promissory note, in satisfaction and discharge of the whole note, and a surrender of the note by the owner to the maker,‘to be can-celled, bar a suit brought by the owner for the recovery of the unpaid portion? We are not disposed to disturb the rule as stated in Wheeler v. Wheeler, in the 11th Vt., that payment of a part of a debt upon an agreement that it shall be satisfaction of the whole, even though the agreement and payment are shown by a receipt, will not extinguish the whole debt. It is claimed here that besides the part payment and the agreement, there is another element — ■ the surrender of the notes to the maker — which operates as a complete discharge of the whole amount due upon them. Inasmuch as it is the agreement of the parties that gives validity and force to their contracts, and to the discharge of them ; their agreement which courts seek to ascertain, and which, when ascertained, justice requires should be faithfully and exactly enforced, it seems plain that their agreement as to payment and its performance, ought tp be the great and controlling considerations in determining when a debt is paid and discharged. Nor does it seem satisfactory to one’s sense of justice to be told, that, when the parties have agreed that payment of part of a debt shall discharge the whole, and one of the parties has performed by payment, the other party shall be protected in refusing to perform his part, and may collect the portion of the debt which he has agreed to discharge, because there is no consideration for the agreement. Neither does it seem to add any thing to the good sense of this class of decisions to say, that if the payee of the debt, on accepting a part, execute a release of the rest of the debt, that shall be valid, but if he execute a receipt only, it shall be void. But we must abide by the old decisions, which have long since determined, that payment of part in discharge of the whole [359] does discharge the whole, if shown by a release under seal ; but if shown by a written agreement, or a receipt, or any proof short of a release, it does not. In the notes to Cumber v. Wane, in 1 Smith’s Leading Cases, p, 450, the American annotator argues that this rule of law requiring proof of such an agreement by a technical release “ is a principle duly established in the elements of the law, which has long sustained itself in the courts, and rests on something better than a mere technicality.” He proceeds, u But as a principle of evidence, this rule, which requires for the substantiation of such agreements, either a surrender of the instrument, or a legal release, is a just, wise and convenient rule ; so great is the danger of fraud and mistake.” That the rule so much commended by the writer has been materially shaken, both in England and some of our American states, is amply shown by the cases so copiously cited in his notes. It is not, perhaps, desirable that a rule of law so long settled and acted upon as this has been, in this state, should be disturbed by judicial decision. Nor is it necessary even to examine it and its qualifications, in order to decide this case. It is sufficient for us to hoid that the surrender of an instrument to be cancelled by the party to whom it belongs, is equivalent to a release. A release is the act of a party by which he does what he has agreed to do. Before the release is executed, his liability stands upon agreement merely, and if the agreement is without consideration, he may legally refuse to do what he has agreed. He may back out from his agreement, but not from his release. The surrender of the instrument in which the party’s rights appear is also the act of the party. Giving it up would seem literally to be dissolving the contract “ eo ligamine quo ligatur We think the surrender of the notes by the owner to the maker may well be put upon the same ground as a release,- — as being an act of the highest significance and clearest import to show the deliberate and well understood agreement of the parties. It is their agreement executed; — a release in practical operation. It. is free from liability to mistake or fraud, The deliberate [360] surrender of notes by the owner to the maker, to be cancelled,is an act which no man of prudence, or of the least knowledge of business, would do, unless he intended to discharge the debt,, A release, as weK as the surrender of notes, may be procured-by deceit and fraud,-^but when they are made according to the intent of the parties, they should be sustained. We do not find this question directly decided in any of the books which we have had the opportunity to examine. But the' decision as here announced seems to us reasonable, and consistent, in the main, with the decisions on- this subject. Judgment affirmed.-