Austin v. Smith , 39 Me. 203 ( 1855 )

Shepley, C. J.

— By the memorandum subscribed by the parties and bearing date on March 12, 1852, the defendant admits, that he was indebted to the plaintiff to the amount of $145. And the plaintiff admits, that twenty-five per cent, thereof had been paid, “ and that he has consented to discharge” the defendant, until he can pay the balance without distressing his family. The word “ discharge,” as thus used, can mean no more than giving a day of payment for the balance, until payment could be so made.

Payment of a part received as payment of the whole of a debt would not by the common law prevent a recovery of the amount not paid, because there would be no consideration for the discharge of that part. So in this case there is no consideration disclosed for the agreement to forbear to collect the amount not paid. The defendant suffered no injury by a payment of part of a debt, admitted to have been justly due. The plaintiff acquired no new rights, and received only part of what was due him.

It is not contended that the case comes within the provisions of the Act of 1851, c. 213, which declares, that no action shall be maintained on any demand or claim “ which has been settled, canceled or discharged by the receipt of any sum of money less than the amount legally due thereon, or for any good or valuable consideration however small.” By the word “ settled” as thus used was not intended a liquidation or adjustment of the amount due, but such a settlement as was intended to extinguish the claim or demand. An agreement not to sue or for delay of payment is not embraced by the statute or affected by its provisions.

Defendant defaulted.