Ramsdell v. Edgarton , 49 Mass. 227 ( 1844 )

Shaw, C. J.

It is very clear, we think, that this action cannot be maintained on the note of June 7th 1833, because it is barred by the statute of limitations, and probably by the release contained in the assignment. And it seems equally clear, that assumpsit for money had and received would not lie, on the agreement of July 2d 1834, because it was a promise upon a condition or contingency ; and an action could be maintained on it, only by setting out the special promise, and averring the happening of the contingency. But as this would only go to the form of the action, we have considered it further.

It is extremely doubtful whether Edgarton had authority, as a partner, to bind the defendants by the agreement of July 1834 : but it might require a more particular statement of facts, to decide whether the partnership still existed. But there is another point, which we think decisive.

It is found that this memorandum, promising to pay the balance of the debt in full, as far as the assigned property should fall short, was made as an inducement to the plaintiff to sign the assignment, and that he objected to signing it till this was done. If the memorandum could be considered as made before signing the assignment, then the obligation created by it would have been discharged by the general release contained in the assignment. But the true way is, to consider them as made at the same time, and the one act as the inducement to the other. It is then precisely within the principle of Case v. Gerrish, 15 Pick. 49. It was a secret agreement, made at the time of the assignment, and repugnant to its terms. By the assignment, the creditor professed to unite with other creditors in discharging the common debtor, on receiving an equal distribution of his property. This was wholly counteracted by the secret agreement. It was an unwarrantable coercion upon the debtor, and a fraud upon the other creditors, and so was void.

The cases cited for the plaintiff, where it has been held that an express promise to pay the balance of a debt discharged by an act of bankruptcy is a good foundation to support an action, have no application. They proceed on the ground that the debt thus discharged leaves a moral obligation, which is a good consideration for an express promise. The distinction is obvious. The discharge is past; and the conscious moral obligation is the real consideration for the express promise. Here the consideration for the promise is, that the creditor will execute a nominal and formal release, which may influence others, but which is intended to be counteracted by the agreement, so as to operate as no discharge of the debt.

There can be no doubt that the evidence of the extraneous agreement, made at the time of the execution of the contract, was admissible. It is trae that parol evidence of what was done, at the execution of the assignment, would not be admissible to vary or alter its terms; but parol evidencé is always admissible to show that an instrument was obtained by fraud or duress, and so to avoid it; and for this purpose it is admitted in the present case. Greenl. on Ev. $ 284.

Judgment for the defendants.