By the Court,
Bronson, J.As the writing executed by the creditors was not under seal it could only operate by way of accord, and then the inquiry is whether satisfaction has followed, for an accord without satisfaction creates no bar. The creditors say they have agreed to take of the defendants “ their whole property by way of assignment,” with certain specified exceptions, and they discharge the defendants “ upon their executing the assignment as aforesaid.” The creditors are to have all the property, and with that they agree to be content, be it more or less. The assignment does not conform to the terms of the proposition. The surplus of the estate, if any remain after paying debts, is reserved to the defendants. The creditors had a right to prescribe the terms on which they would consent to discharge their debts, and nothing short of a strict compliance with the terms of the proposition on the part of the defendants could make the arrangement operate as a satisfaction of the demands.
Either through mistake or design the instrument transfering the property has been drawn like the usual assignment for the benefit of creditors, where the property is to be sold and applied to the payment of debts, reserving the surplus, if any, to the debtor, and leaving him answerable for the” balance if the debts should not be fully paid. But the agreement was that the creditors should have the specific thing in satisfaction of their debts. However valuable the property might prove they were to have the whole, and though it might be worth no more than a tithe of the debts, the satisfaction was to be complete.
The clause providing for the compensation of the assignees is also objectionable. The reward of the assignees was a matter to be adjusted between them and the creditors. The defendants had nothing to do with it, and the assignment should not have been clogged with any provision on that subject. But this is less important than the reservation of the surplus.
*108The persons named as assignees were not the agents of the creditors for any other purpose than that of receiving a transfer of the property when made in pursuance of the proposition. When Mr. Warner drew the assignment he was acting as agent or .counsel for the defendants. He clearly had no power to bind the creditors by any departure from the terms on which they had agreed to discharge their debts.
It is impossible to say that the plaintiff has ratified the transfer, for it does not appear that he ever saw the assignment, or was informed what were its provisions. He was present at the sale of the real egtate by the assignees, and expressed his regret at not having known of the sale of the personal property, as he wished to bid and make the property bring as much as possible. But so far as appears, he was then acting upon the supposition that an assignment had been made in accordance with the terms of the proposition. He has never done any act in affirmance, of the assignment, and I do not see how he can be concluded by it. To make out a ratification it must appear that the plaintiff had either seen or been informed of the contents of the assignment, and that he has subsequently done some act under it, such as receiving a dividend, or that he'has acquiesced in its provisions by allowing the assignees to proceed under it without giving notice of his dissent. As the case stood on the trial, I think the plaintiff was entitled to recover.
As to the mortgage and judgment it is enough that satisfaction was duly acknowledged, and satisfaction pieces placed in the hands of the assignees for the benefit of the creditors. But the verdict must be set aside on the other ground.
New trial granted.