President & Dirs. of the State Bank v. LittleJohn

• Decision Date: 31 December 1835
• Citation: 18 N.C. 563
• Court: North Carolina Supreme Court
• Parties: THE PRESIDENT AND DIRECTORS OF THE STATE BANK v. JOHN W. LITTLEJOHN.

18 N.C. 563

THE PRESIDENT AND DIRECTORS OF THE STATE BANK

v.JOHN W. LITTLEJOHN.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1835.

Where A owed B by bond, and it was agreed between them that A should pay the debt by instalments, and execute a new bond for the balance due after each payment: it was held, that an offer of performance by A was not a bar to an action on a bond delivered after the agreement was made.

DEBT, upon a bond executed by the defendant, in the following words:

"On 10 June next, with interest from the date hereof, I promise to pay to the president and directors of the State Bank of North Carolina, at the agency of the said bank at Edenton, the sum of five thousand seven hundred and twenty-six dollars, for value of them received, which debt is secured in a deed in trust to Augustus Moore, trustee, for the benefit of the said president and directors (bearingdate 15 June, 1829. In testimony, etc., this 10 June, 1834." Among other pleas, the defendant entered, first, "accord and satisfaction"; second, "accord with an agreement on the part of the plaintiffs to forbear, and promises on his part to pay."

Upon the trial at CHOWAN, on the last circuit, before his Honor, Judge Dick, the defendant offered to prove that on 10 June, 1829, he was indebted to the plaintiffs, payable at

their branch bank at Edenton, in the sum of nine thousand five hundred and ninety-nine dollars and twenty-seven cents; that he on that day entered into an agreement with the bank to pay the said debt by annual instalments of twelve hundred and fifty dollars until the whole should be extinguished; that he was to execute a deed of trust of his property for the benefit of the bank, and renew his bond, with security, annually, as he had done before. He then averred that he had executed the deed of trust according to his agreement, and offered to show it in evidence; and also that he had annually paid his instalments of twelve hundred and fifty dollars and renewed his bond at bank agreeably to his contract, up to 10 June, 1834, when the bank took the bond now sued on, the debt which he owed in 1829 being reduced by payments to the sum mentioned in this bond. The defendant then offered to prove that on 10 June, 1835, he tendered to the bank an instalment of twelve hundred and fifty dollars, together with a new bond for the balance, properly secured, but that both were rejected by the bank, contrary to the agreement, soon after which the present suit was instituted. This evidence was objected to by the plaintiff and was rejected by the Court, and, the plaintiff having obtained a verdict, the defendant appealed.

2. In the present case the deed in trust, to amount to a release, should have been executed by the plaintiffs.

3. A release cannot be of a debt which does not exist, for a man cannot release what he has not. A bond creates an obligation of itself, and the law will not look back for the

foundation upon which it was given. In this respect it differs from a parol contract.

4. At all events, the deed of trust cannot operate to prevent the bank from reducing the debt to a judgment.

Iredell, in reply: The object of the agreement was to receive a new note every year, which is inconsistent with the judgment being obtained. In this case the bond itself shows that the original debt was the foundation upon which the bond was given.

DANIEL, J., after having stated the case as above, proceeded : We are of the opinion that evidence offered by the defendant and rejected by the Court could not have sustained the plea of "accord and satisfaction." This plea always sets out what the defendant gave in satisfaction; it alleges the delivery, and it expressly avers that the goods, or things done, were accepted in satisfaction and discharge. Drake v. Mitchell, 3 East, 256-258; 1 Saund. Pl. &Ev., 24. The replication to the plea may either deny the delivery of the chattel in satisfaction, or,...