Bailey v. Day , 26 Me. 88 ( 1846 )

The opinion of the Court was prepared by

Tenney J.

— The plaintiff and another person, who is now dead, recovered judgment against the defendants for the sum of $80,27, debt or damage, and of $7,86, costs oí the same suit. The present action is upon that judgment, and is defended upon the ground, that the judgment had been fully paid before the commencement of the suit; but if otherwise, it was satisfied by the written acknowledgment by the plaintiff of the receipt of ten dollars, paid July 5, 1841, and a discharge of the judgment.

The receipt, which is in the case, does not show that any sum was paid upon the judgment, besides the ten dollars therein mentioned. The judgment is evidence of the indebtedness and the amount, and the burden is upon the defendants to show a payment of the balance, before they can avail themselves of this ground of defence.

‘ The authorities are numerous, and it is believed uniform, that the payment in money, of a debt due and payable in money, by the debtor, at the place, where he was bound to make it, of a sum less than the full amount, and at the same time an agreement of the creditor to discharge the residue, will not operate as a defence to a suit for the balance. . The reason is obvious; the agreement of discharge is without consideration. The apparent injustice of the rule in many cases has been presented in a strong light by the defendant’s counsel. But to allow the argument to prevail would be subversive of the principle that in a simple contract, a promise without consideration is a nudum pactum. It is immaterial how small the consideration may be to make the contract binding, but if without any, it is void.

If without consideration a creditor makes a simple contract in writing, by which he agrees with his debtor, that his debt is discharged, it is quite manifest, that the rights of the parties remain unchanged; it is equally so, where is connected with such agreement no act of the debtor, which he was not in all respects previously bound in law to perform.

By the payment of a part, the defendants laid no foundation for an obligation in the plaintiff, but merely made discharge, pro tanto, of their own which they had long omitted.

Judgment for the plaintiff'.