Hard v. Burton
| Decision Date | 09 August 1890 |
| Citation | 20 A. 269,62 Vt. 314 |
| Parties | E.R. HARD v. O.A. AND D.N. BURTON |
| Court | Vermont Supreme Court |
JANUARY TERM, 1890
Judgment affirmed.
Farrington & Post, for the defendants.
TYLER J., being indisposed, did not sit.
Defendants requested the auditor to find whether plaintiff, on October 8, 1888, settled all the account he had against them jointly up to the time he rendered his account in the fall of 1887, called "Defendant's Exhibit No 1."
The auditor finds that "in the fall of 1887 the plaintiff rendered to the defendants a statement of his account down to that time." He also finds that said exhibit, which is the account thus rendered, "embraces all the charges that were considered by the parties on that occasion," which means that all the charges embraced therein were then settled, in the manner found, of course and an inspection of the exhibit shows the same. This was a substantial compliance with the request.
The report states that the plaintiff insisted on the allowance of the 700-dollar item in question, "because of the refusal of the defendants to consent to his withdrawal from the suit referred to in said item," and for other reasons named. The defendants requested the auditor to strike out what is quoted, for that there was no testimony tending to show that they knew that plaintiff intended to withdraw, nor that they ever refused to allow him to withdraw. We think the statement objected to was not intended by the auditor as a finding of fact, but only as a statement of a reason given by the plaintiff why the item should be allowed. This is manifest from the fact that further on in the report the auditor makes findings on this very point that seem to preclude the idea that he intended the statement as a finding of fact. But if he did, the testimony warranted it, for the plaintiff testified that after he wrote the letter of April 8, 1888, to the defendants, he thought he received a letter from one or both of them, not consenting to his withdrawal; and on objection being made and the production of the letter called for, he said he wasn't certain that it was a letter, but it was some communication from them. As no objection was taken to this testimony by excepting to the report for its admission, the question of its admissibility cannot be raised now. Kidder v. Smith, 34 Vt. 294.
Defendants object that the auditor did not comply with their request to find what were the contents of said letter of April 8th as testified to by the plaintiff, and that the testimony did not tend to show that it contained what the auditor finds it contained. But this objection cannot be sustained. The plaintiff could not find a copy of that letter, and did not profess to remember its contents accurately, but testified to his general recollection of it; and the auditor's finding as to its contents is pretty much in the language of the plaintiff's testimony. Besides, it must be remembered that this letter was presumably in the defendants' possession, and could have been produced by them, for aught that appears, if they deemed its exact language important.
This brings us to a consideration of the main questions in the case. And first, of the $ 830, which is composed of charges for plaintiff's services in the Noyes will case, made to both defendants. In respect of this amount the auditor finds that on the occasion of the settlement of October 8th, and as a part of it, the plaintiff, "at the request of both defendants, then and there agreed to charge to the defendant D. Noyes Burton the sum of $ 830 of the debits contained in said account, the said D. Noyes Burton then and there assuring the plaintiff that he would pay said amount in monthly payments of $ 100 each," but that he has never paid the same nor any part thereof.
In said settlement this amount was credited, which, with $ 200 discounted and some small cash credits, left the balance of the account at $ 716, which the defendant O. A. Burton then and there paid by his bank check and time notes, and the plaintiff receipted the account as settled accordingly, but now seeks to recover said sum of $ 830 of both defendants.
At the time of said settlement the charges that go to make up that sum constituted a valid debt against both defendants; and the question is, Did what then transpired have the effect to discharge the defendant O. A. Burton from that liability?
The defendants claim that it did, on the ground that the acceptance by a creditor of the sole and separate liability of one of two or more joint debtors is a valuable consideration for an agreement to discharge all the others.
The plaintiff claims the contrary, on the ground that the transaction did not amount to an accord and satisfaction, which defence, he says, can be availed of only on the ground of novation; and because there was no consideration for his agreement; and for that it does not appear that the agreement of D. Noyes Burton was received in express satisfaction of the joint liability, and that his naked promise could not per se effectuate the release of the other defendant.
We need not stop to inquire whether there is any difference between novation and accord and satisfaction, for they are all one for the purposes of this case. Lord Chancellor Selborne says that novation, a term borrowed from the Roman Law, means that there being a contract in existence, some new contract is substituted for it, either between the same or different parties, the consideration mutually being the discharge of the old contract; that a common instance of it in partnership cases is, where upon the dissolution of a partnership the persons who are going to continue the business agree and undertake, as between themselves and the retiring partner, that they will assume and discharge the whole liabilities of the business, usually taking over the assets, and if in that case they give notice of that arrangement to a creditor, and ask for his accession to it, there becomes a contract between the creditor who accedes and the new firm, to the effect that he will accept their liability instead of the old liability, and on the other hand that they promise to pay him for that consideration. Scarf v. Jardine, 7 App. D.C. 345 at 351. JUSTINIAN says that novation takes place only when the contracting parties expressly disclose that their object in making the new contract is to extinguish the old contract; that otherwise the old contract remains in force and the new contract is added to it, and each gives rise to an obligation still in force. Inst. Lib. III, Tit. XXIX, pl. 3. We allow this intention to be inferred from circumstances, although some cases call for an express declaration of it.
It was once thought that when, upon the dissolution of a firm, the partner who continued the business agreed to take the debts upon himself, a firm creditor could not, by assenting to the agreement, discharge the retiring partners from liability. It is said that this notion was principally founded upon Lodge v. Dicas, 3 Barn. & Adol. 611, and David v. Ellice, 5 B. & C. 196, although they did not, perhaps, warrant it to its full extent. But this doctrine, which was based on the ground of no consideration to the creditor, was much complained of, and finally came to be fully considered in Thompson v. Percival, 5 Barn. & Adol. 925. That was assumpsit for goods sold and delivered, and was this: The defendants, James and Charles Percival, had been in partnership and dissolved in the usual way, James to continue the business and receive and pay all debts. At the time notice of dissolution was first given to plaintiffs, they had a demand against the firm, for which James told them they must look to him alone. Afterwards they drew a bill on James for the amount, which was accepted but dishonored, and they gave time to pay, but finally brought suit against both defendants. A verdict having been taken for the plaintiffs on these facts, a new trial was granted, that it might be left to the jury to find whether or not the plaintiffs expressly agreed to take, and did take, the separate bill of James in satisfaction of the joint debt, the court holding that if they did, the defendant would be entitled to a verdict. PARKE, B., in Hart v. Alexander, 2 M. & W., at page 492, says this case very much shakes the authority of Lodge v. Dicas and David v. Ellice. Lyth v. Ault, 7 Exch. 669, is to the same effect as Thompson v. Percival, and exactly supports the defendant's proposition as stated above, namely, that the acceptance by a creditor of the sole and separate liability of one of two or more joint debtors is a valuable consideration for an agreement to discharge all the others.
There are many cases in this country to the same effect, most of them being where the separate promissory note of one was taken by the creditor in discharge of all, and usually in cases of partnership after dissolution. Sheehy v. Mandeville, 10 U.S. 253, 6 Cranch 253, 3 L.Ed. 215; Harris & Donaldson v. Lindsay, 4 Wash. C. C. 271, 11 F. Cas. 637; Waydell v. Luer, 3 Denio 410, and cases passim.
The agreement relied upon to discharge the defendant O. A. Burton has not been performed by the other defendant, nor does it appear that the plaintiff agreed to accept the latter's assurance of performance in discharge of the former. The rule is that if the new promise itself be the thing accepted in discharge, it will be operative accordingly, but that if the performance of it and not the promise itself be the thing accepted, there will be no discharge without performance. 1 Sm. L. C. *444 *447; Kromer v. Heim, 75 N.Y. 574; Morehouse v. Second National Bank of Oswego, 98 N.Y. 503; ...
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