Buchanan v. Paddleford

The opinion of the court was delivered by Pierpoint, C. J. It appears from the report of the auditors, and is conceded by counsel, that .the defendant was originally indebted to the plaintiff in the sum found due by the auditors. [66] But it is insisted, on the part of the defendant, that he was discharged from his indebtedness to the plaintiff, in consequence of an agreement on the part of Morse, Chamberlin & Co., to pay the debt to the plaintiff, in bonds of the White Mountain Railroad Company, which the plaintiff agreed to accept, in payment, and that, upon the facts reported, the legal effect of such agreement was, to substitute this agreement on the part of Morse, Chamberlin & Co., in place of the debt due from the defendant to the plaintiff, and that the defendant was thereby discharged. The arrangement was made between Chamberlin, on the part of said Morse, Chamberlin & Co., and Hutchins, who was one of the firm of which the plaintiff is the survivor. Chamberlin and the defendant went to see Hutohins in respect to this claim, and after the agreement was made, Hutchins told the defendant that he and Chamberlin had arranged the matter, and that he (the defendant) might go home. The defendant did not inquire what the arrangement was, and was not told, but left without having any knowledge on the subject. To make this agreement a substitution for the debt of the defendant, so as to discharge him, something more is necessary than that Chamberlin should agree to pay the debt in the manner specified, and Hutchins agree to accept the pay in that way. Such an agreement would be only a naked promise to pay the debt of another, and void under the statute. Yet this seems to be' all that can be made of it, upon the report of the auditors; they fail to find any agreement between the parties to substitute the one for the other, or any facts from which an inference to that effect naturally arises. They say nothing was said upon the subject. There was no discharge of the defendant from his liability, and no agreement to discharge him; there was no transfer of the debt from the defendant to Morse, Chamberlin & Co., on the books of the plaintiff, but the whole matter, as between the plaintiff and defendant, was left just as it stood before the agreement, except that the plaintiff had agreed to accept of railroad bonds in payment of the debt, and had they been offered, would probably have received them in payment; but they were never paid, or offered to him. The auditors find that he could have had them if he had called for them. That he was not bound [67] to do. To make the agreement available to the defendant, it must appear that there was a substitution of one obligation for the other, or an actual compliance with the terms of the agreement. In the absence of either, the defendant fails to establish a defense, either on the ground of siibstitution, or an accord and' satisfaction. Judgment of the county court reversed, and judgment for the plaintiff for the amount found due by the auditors, with interest and cost.