Walker v. Russell

Sh-aw C. J.

delivered the opinion of the Court. The plaintiffs' having proved the note declared on, are entitled to judgment, unless upon the facts agreed the other party has shown a good legal defence. At the time, when the arrangement was made, by which the plaintiffs agreed to receive payment by instalments through the agency of Flint, their note was wholly due, and payable, and as against the defendant, they were entitled to receive the whole amount forthwith. The strongest ground which can be taken for the defendant is, that on condition of receiving the instalments, according to the arrangement, the plaintiffs promised forbearance of payment.

The Court are of opinion, that such a promise cannot constitute a good legal defence, because it was executory and col .ateral, but more especially because it was voluntary and without any legal consideration. No new fund was provided, no new security was given ; it was a mere naked promise, to receive in "nstalments, at a more distant day, money, the whole of which the plaintiffs were entitled to receive presently. It depended upon the future will and act of the debtor, whether he would. continue in the service of the company and earn wages, and when earned, to permit Flint to receive and distribute the money according to the arrangement. In a recent case in Worcester, where a note had become due at a bank, and by an arrangement with the bank the note was permitted to lie over for a certain time, say three months, and the discount paid, but the promisor failing in the mean time the note was put in suit, -the Court held, that this qualified renewal, or agreement for an extension, constituted no legal defence, and the action was maintained. (Central Bank v. Willard, ante, 150.)

Such a promise of forbearance does not constitute a release ; it is not a payment ; it is not good as an accord and satisfaction, because no valuable equivalent is received ; it is a collateral, executory agreement without consideration, which, however binding as an honorary agreement, constitutes no legal defence.

The Court are also of opinion, that the trustees must be charged on their answer. The liability of the trustees must of course depend upon the facts disclosed in their answers. Having stated a balance in their hands, due the principal defendant, they must, of course, stand charged, unless they show a valid assignment to Flint. We think the answer of the trustees, by their agent, shows no assignment which can be considered as vesting any equitable interest in the assignee. Without giving any opinion upon the question, whether there was any assignable interest in wages not earned, and in regard to which, so far as appears, there was no definite contract for any certain time, and whether such assignment could be made merely by parol, and without any notice from Russell to the trustees, we think the answer does not show or disclose an assignment. Flint notified the agent, that Russell and his creditors had agreed, that he, Flint, should receive Russell's wages as they fell due, .for their benefit, and requested the agent to pay him. To this the agent did net assent, but only agreed to give Flint notice when the v\ ages were due, and if Russell would sign the pay-roll, and would consent, the agent would pay the amount. And to this Flint assented, as far as appears, and did not notify the agent, that an assignment binding upon Russell had been made, and that the company were to pay him, whether assented to or not. It appears to us, therefore, that the parties did not consider this arrangement as an assignment, but considered Flint merely as agent to receive the money when due, with the consent of Russell, and distribute it among the creditors. The effect of the attachment" was to revoke this authority. We think, independently of the questions above stated, that the answer discloses no assignment in fact, and that the trustees must be charged.

Defendant defaulted and trustees charged.