Frick v. Joseph

Parks, Associate Justice:

This case is clearly stated by the plaintiff in error, and is as follows:

This suit was brought in the court below to recover the amount due on a certain promissory note made by the defendant and one William W. Henderson, then deceased, to plaintiff for $250, dated January 29, 1868, payable five months after date with interest at twelve per cent, per annum after maturity, on-which the sum of $86 was paid March 10, 1873. The defendant pleaded non-assumpsit and three special pleas. To two of said special pleas, the plaintiff’s demurrer was sustained and issué joined on said plea of non-assumpsit and the second of said special pleas, and the cause was heard upon the issues so made up. The evidence offered on the part of the plaintiff was the Gourgas promissory note sued on, and the depositions of Catron and Breeden, with the letter therein referred to, and on the part of the defendant, the depositions' of Gourgas Pope, and deed of conveyance accompanying same. A jury was waived by the parties and the cause submitted to the court for determination, by stipulation. The court found and gave judgment for the plaintiff for the amount admitted by said special plea to be due, only, to wit, the sum of $50 with interest, to which the plaintiff excepted, and moved for a new trial, which motion was overruled, and the cause brought into this court by writ of error. The second special plea is as follows:

“ And for a further plea in this behalf, the said defendant says actio non, because he says that long after the maturity of the note sued on and set forth in said petition, to wit: on or about the 25th day of May, 1870, the said plaintff agreed with the said William W. Henderson, the maker and principal on said note, to accept in full satisfaction and payment of said note a certain portion of the proceeds of a certain interest then owned by the Said William W. Henderson in a mining claim known as the California Company’s Claim, situate in Humbug Gulch, in the county of Colfax, and that the said interest was then and there turned over to the said defendant and one GourgasPope by the said Henderson to carry out the said agreement; that on or about the 10th day of March, 1873, the said interest produced as the proportion due the said plaintiff the sum of $86, which was paid to the said plaintiff by the said defendant and the said Pope, and credited on the back of said note by the said plaintiff; that the said interest produced as the proportion due the said plaintiff, on or about the 24th day of May, 1875, the further sum of $50, as the only further product besides the $86, and as the final and last product of said interest to be paid said plaintiff in full settlement of said promissory note, and as to the said sum of $50 of the said several sums of money in the said declaration mentioned, the said defendant says that the said plaintiff ought not to have or maintain his aforesaid action thereof against him, to recover any more or greater damages than the said sum of $50, parcel, etc., in this behalf, because he says that after the making of the said several supposed promises and undertakings in the said declaration mentioned as to the said sum of $50, parcel, etc., and before the filing of the petition herein, to wit: on the 13th day of April} 1875, at the county of Taos, that is to say at the county of Mora aforesaid, he, the said defendant, was ready and willing and then and there tendered and offered to pay to the said plaintiff the said sum of $50, parcel, etc., to receive which of the said defendant, he, the said plaintiff, then and there wholly refused; and the said defendant, in fact, further saith that he, the said defendant, has always from the time of the making of the said several promises and undertakings in the said declaration mentioned, as to the said sum of $50, parcel, etc., hitherto at the county of Mora aforesaid, been ready to pay, and still is there ready .to pay to the said plaintiff, the said sum of $50, parcel, etc., and he now brings the same into court here ready to be paid to the said plaintiff, if he will accept the same; and this he, the said defendant, is ready to verify. Wherefore, he prays judgment if the said plaintiff1 ought to have or maintain his aforesaid action aginst him, to recover any more or greater damages than the said sum of $50, parcel, etc., in this behalf, etc.
“CONWAY & RISQUE,
“Attorneys for Defendant."

The demurrer to this plea was overruled, but it is a little remarkable that the learned judge who overruled it, at the same time gave the defendant leave to amend it, and that defendant did not amend.

If this plea sets up a defense to the note as held by the court below, it is as an accord and satisfaction. The general doctrine that an agreement to settle a claim or demand in order to constitute a bar to an action, must be executed, is so well settled that it is stated on high authority that a “decision to the contrary would overthrow all the books.”

The law applicable to this case is believed to be well stated by the supreme court of Vermont in Babcock and others v. Hawkins, 23 Vermont, 563, The court says: “The accord is sufficiently executed when all is done which the party agrees to accept in satisfaction of the pre-existing obligation. This is ordinarily a matter of intention, and should be evidenced by some express agreement to that effect, or by some unequivocal act evidencing such a purpose; this may be done by surrender of the former securities by release or receipt in full or in any other mode. All that is requisite is that the debtor should have executed the contract to that point whence it was to. operate as satisfaction of the pre-existing liability in the present tense; this is shown in the present case by executing a receipt in full the same as if the old contract had been upon note or bill and the papers had been surrendered.”

In the case at bar, the intention of the parties is shown upon the part of the plaintiff, by the facts, that he did not surrender the note, did not give a receipt, did not execute a release, that he kept the note for years and credited all the money paid on the note; and upon the part of the defendant, it is shown by the facts that at the time of the agreement, he did not demand the note or a receipt, that two years after he paid $86 on that note, and five years after, as stated in his plea, he tendered $50 as the final and last product of said interest to be paid said plaintiff in full settlement of said note. We cannot understand how defendant could pay plaintiff $50 in full satisfaction of the note in 1875, if the note had been extinguished by the agreement in 1870, and a new contract substituted for it. Against these convincing proofs that it was not the intention of the parties to substitute the new contract for the old, is the testimony of Pope to the effect that he understood the agreement and deed described in his deposition to be intended as a release of the note; but his testimony was taken six years after the transaction, and the deed furnishes no evidence of any such intention. In the view we take of this case, it is.not necessary to examine particularly the weight of Pope’s testimony, and in any view of the case, his recollection of the intention of the parties after so long a .time is very slight testimony compared with the conclusive acts of the parties themselves. The agreement set forth in the plea does not show what kind of mine it was, whether it was of any value or what portion of its proceeds plaintiff in error was to receive; so far as the agreement shows, the mine may have 'been utterly worthless and the agreement void for want of consideration.

It is evident also from the plea that this was not one of that kind of agreements which are executed at the time they are made; plaintiff agreed to accépt in full satisfaction and payment of the note, a certain portion of the proceeds of a certain interest in a mining claim. No portion of the proceeds of the mine could be accepted till it was produced from the mine. Eighty-six dollars was produced, tendered and credited on1 the note two years after, and $50 produced, tendered and not accepted five years after according to the plea.

The plea is inconsistent with itself; the plea of accord and satisfaction denies any and all indebtedness; the plea of tender admits that something is due.

The judgment on this plea should have been against the plaintiff for costs or in his favor for note and interest, deducting only the $86 paid, for there is no proof of the tender of the $50, and, in fact, there is no evidence of what became of the mine or of any interest in it, after the $86 was paid. For aught that appears in the testimony, the portion of the proceeds of the mine to which plaintiff was entitled under the agreement, may have amounted to enough to pay the note. The plaintiff in error claims that the court has the right in this case to render judgment non obstante veredicto, as upon confession for the balance due on the note, but the exercise of that right is discretionary, and in this case we think it proper to give the defendant the benefit of a new trial.

For this purpose the judgment is- reversed and remanded, with leave to the defendant to amend his plea.

All concur.