Wittkowsky v. Baruch Et Ux

• Citation: 127 N.C. 313,37 S.E. 449
• Court: United States State Supreme Court of North Carolina
• Decision Date: 11 December 1900
• Parties: WITTKOWSKY. v. BARUCH et ux.

127 N.C. 313
37 S.E. 449

WITTKOWSKY.
v.
BARUCH et ux.

Supreme Court of North Carolina.

Dec. 11, 1900.

[37 S.E. 449]

COMPROMISE AND SETTLEMENT—ASSIGNMENT FOR BENEFIT OF CREDITORS—FRAUD.

1. Under Code, § 574, permitting compromise and settlement of all claims or money demands, the surrender of notes to the maker under a compromise agreement that he should pay half cash and give new notes for the balance precludes the payee from suing on the old notes.

2. A complaint which declares on a violation of a promise made in fraud of the rights of creditors under an assignment for their benefit is demurrable, since executory contracts based on a fraudulent consideration will not be enforced.

Petition for rehearing. Granted.

For former opinion, see 30 S. E. 156.

FURCHES, J. This case was before us at the last term, and is reported in 126 N. C. T47, 36 S. E. 156, and is before us again upon a petition to rehear. The facts are fully stated in the report of the case when here before, and we will not restate them, further than we may find it necessary to do so to dispose of the petition to rehear. When the case was here before, we were of the opinion that the plaintiff could not recover upon the old notes, and so stated in the opinion; and, while the defendants seem to understand this to have been the decision of the court, the plaintiff does not so understand the opinion. And the defendant says that, if that was the decision of the court at last term, he asks us to reconsider that opinion and to reverse the same, and, if the court is still of that opinion, to say so in plain and unmistakable terms, —in the language of counsel, to "emphasize it." We try not to use harsh expressions, or language that is too aggressive or emphatic, in our opinions; but it is always to be regretted, if we have failed to make ourselves understood by intelligent lawyers. But, as counsel have asked us to do so, we must state that it was the opinion of the court at the last term that the plaintiff could not recover upon the old note, and it was intended to be so expressed in the opinion then delivered. This rehearing is asked by defendants upon other grounds of alleged error in the opinion of the court, and the practice has been to hear the petition upon the assignments of error stated in it. But, as the learned counsel for plaintiff insists with earnestness and great zeal that this opinion of the court is erroneous, we depart from the usual practice for the purpose of reviewing and reconsidering that question, for the reason that the case is still within our control, and If it is erroneous it should be corrected at the earliest opportunity.

The plaintiff contracted and agreed with the defendant H. Baruch to compromise his debt of $20,000 for $10,000, and to surrender his notes, amounting to $20,000, upon the receipt of $10,000; and under said contract and agreement of compromise the $10,000 was paid to plaintiff, and his notes for $20,000 surrendered. If this does not bring the case within the terms of section 574 of the Code, which reads as follows: "In all claims, or money demands, of whatever kind, and howsoever due, where an agreement shall have been or shall be made and accepted for a less amount than that demanded or claimed to be due...