Hoyt v. Wilkinson , 27 Mass. 31 ( 1830 )

Per Curiam.

We think there is nothing in the contract under seal which should prevent the plaintiffs from maintaining assumpsit. It is not a contract to pay money ; it is a release of mutual demands, except those enumerated ; which remain just as if there had been no release. A specialty is not sub-st*tuted for the simple contract.* ¹ The intestate and the defendant agree, “ that whenever this account shall be balanced, then and at such time all mortgages, bills of goods or any other property, and notes of hand, which either party holds against the other, shall be cancelled.” This is precise. When the account shall be balanced, the securities shall be given up ; but the instrument is not a contract to pay the balance ; it does not merge the original demands.

But another effect may be given to this contract. It is an admission of the existence of the demands enumerated ; it is like any other acknowledgment of a debt. It supports the allegation of an insimul computassent.

On the first count the plaintiffs are entitled to recover the balance therein set forth.

The note held by Cushman cannot be charged to the defendant, as it has not been paid. This, is the common case of a surety ; who must pay the debt before he can recover against his principal.¹ So of the note given to Hall.

The note signed by Nims as surety for the intestate, stands on a different footing. Nims having paid it, acquired thereby a right against the intestate’s estate, and this gives the plaintiffs a right of action against the defendant. It was paid by the agent of the intestate, or of his representative, and this is the same thing as if it had been paid by the intestate himself. This opinion proceeds on the ground that the payment by Nims was previous to the commencement of the suit.

Wells said the fact was otherwise ; and the plaintiffs agreed to take judgment for the amount allowed by the Court, exclusive of this note.

Defendant defaulted.

1 See Chitty on Contr. (4th Am. ed.) 607.

1 See Morrison v. Berkley, 7 Serg. & Rawle, 238; Miller v. Howry, 3 Pennsylv. R. 380; Hodges v. Armstrong, 3 Devereux, 253.