Jewett v. Wadleigh , 32 Me. 110 ( 1850 )

Howard, J.

It does not appear that the plaintiffs had any interest in the execution described in the agreement of the defendants, or in the judgment on which it issued, other than as attorneys to the creditor in the original suit. The argument for the plaintiffs assumes that the agreement was made with them solely ; and this is in accordance with the evidence, and consistent with, if not the necessary import of, the terms of the agreement.

As attorneys of the creditor, it was competent for the plaintiffs, being intrusted with the execution, to collect it, and to discharge it upon the receipt of payment, but not to discharge it upon the receipt of a less sum than the amount due, unless specially authorized. They could control the remedy, but not release the debt. The powers and duties of attorneys in this country, are much discussed in Jenney v. Delesdernier, 20 Maine, 183; Lewis v. Gamage, 1 Pick. 347.

The import of the agreement of the defendants was, that as they had settled the execution of Wilson, (the creditor,) against themselves and Purington, by payment of a portion in cash, and giving their own notes with surety, payable on time, to the plaintiffs, as the case shows, for a less sum than the amount'of the balance of the execution, by $141,77, if .those notes were paid within thirty days from the time they became due, “ it was to be in full discharge of said execution,” otherwise the defendants were to pay the balance of the execution to the plaintiffs. There is no evidence that the creditor knew of this arrangement, or that he authorized or ratified it. There is no proof that the execution has been discharged ; on the contrary it is apparent, from the terms of the agreement, that it was not to be discharged, unless the notes were paid, as stipulated in the contract. The agreement to accept a smaller sum in satisfaction of the judgment, supposing such agreement to have been made, as the parties assume, was executory, and conditional, and the condition was hot complied with. The execution was not, therefore, discharged, and the judgment is still in force for the amount now claimed, at least; even if the amount of the cash, and of the notes, which have been paid since the commencement of this suit, should be appropriated in payment, pro tanto.

Assuming that the plaintiffs, in their capacity as attorneys for the creditor, could have discharged the execution, under the circumstances, there is no proof that it has been done, and we cannot infer it from the evidence. And if it may be considered as paid in part, by the money and notes received by the plaintiffs, still the judgment may be enforced by the creditor, for the amount claimed under the agreement, in this suit. As no consideration has been shown for this agreement, it cannot be enforced.

Plaintiffs nonsuit.