The answer alleges, in brief, that under the contract set forth, the plaintiffs claimed on the 30th of July, 1864, the payment of $6,400; that the defendants are unable to pay the same; that it was then agreed that if the defendants would induce their friends to raise and loan to them the sum of $3,500, and the defendants should pay the same to the plaintiffs, the plaintiffs would compromise their alleged demand upon receiving that sum, and leave it to defendants' honor whether they should thereafter pay any further sum; that therefore, in pursuance of such agreement, at a great sacrifice, the defendants did borrow from their friends the sum of $3,500 and paid the same to the plaintiffs, with the agreement that the same should be accepted in satisfaction of the claim, leaving it to the defendants' honor to pay an additional sum, which, together with the $3,500, should make seventy-five cents on the dollar of the plaintiffs' demand, to be paid when the plaintiffs should be able to do so; that the money was loaned to them by their friends upon the inducement and consideration above mentioned.
In my judgment, this answer sets forth no defence to the action. It is based upon the fallacious idea that the manner and terms upon which the defendants obtained the $3,500 can make the payment of a less sum than the admitted debt a good *Page 231 accord and satisfaction. Two well-settled principles show the unsoundness of this theory. 1. A debt of $1,000 from A. to B. cannot be discharged by the payment of a less sum, nor will same be an accord and satisfaction, however positive the agreement to that effect may be. There is no consideration for such an agreement, and nothing short of a formal release will produce a discharge of the debt (Cole v. Sackett, 1 Hill, 517; Muldon v. Whitlock, 1 Cow., 306; Hawley v. Foote, 19 Wend., 516.) The general rule is not denied.
2. The money, when borrowed from the friend of the defendants, instantly became the property of the defendants. They borrowed it, and it was theirs. Its possession for an hour or a minute made it as certainly their own as if they had held it for a month or a year. If they had deposited the borrowed checks to their own credit in bank, and paid the plaintiffs in their own check or in bank currency, the transaction would have been perfectly correct toward the lenders and the same to the plaintiffs. The payment to the plaintiffs from the specific funds receive, or from other sources, cannot affect the rights of any one. The defendants, then, with their own money, compromise their debt with the plaintiffs; and when, where or how they supplied their funds or credit does not enter into the consideration of the case.
The principle that the pleading is to be construed most strongly against the pleader is useful in this case. (Slocum v.Clark, 2 Hill, 475; Ferriss v. N.A.F.I. Co., 1 Hill, 71.)
The answer alleges that the plaintiffs, on the 30th of July, 1864, "claimed" from the defendants the sum of $6,400, and it is again called "the alleged demand" of $6,400. It is nowhere averred in the answer that this sum of $6,400 was not actually due to the plaintiffs. The undisputed testimony on both sides, including the evidence of one of the plaintiffs and of one of the defendants, shows this to have been the actual amount due upon breach of the contract to deliver exchange. We may, therefore, safely dispose of the case as if the answer had stated that the sum of $6,400 was justly due to the plaintiffs, and that the arrangement was made for the *Page 232 satisfaction thereof by the payment of $3,500, as already set forth.
In his additional points, the appellants' counsel concedes that if the allegations of the answer do not set up a good accord executed, the verdict is right and the judgment must be affirmed. Upon the view I have taken, such must be the result.
All concur. Judgment affirmed.