Conkling v. King , 1 Seld. Notes 86 ( 1853 )

On the 17th of Hay, 1845, King, being indebted to the plaintiffs in the sum of $371.57, made an arrangement to pay them $85 in money, and furnish a satisfactory note for $100, payable on the 17th of November then next, with interest, which they agreed to accept in full satisfaction of the debt, provided the note should be paid at maturity,, but not otherwise. King paid the $85, and on the 13th of June delivered to plaintiffs the note of F. Holden for $100, payable 17th November then next, with interest from 17th Hay, which plaintiffs accepted on the terms before agreed upon. The note was not paid at maturity by Holden, but he paid part in February and the balance in May, 1846, and the plaintiffs gave it up to him.

This action was brought to recover the balance of the account, over the money paid and the note. The Albany Mayor’s Court gave judgment for the plaintiff; the Supreme Court reversed the judgment, and ordered a new trial; and the latter judgment was affirmed.

Held, that although the plaintiffs had the tight, on default being made in the payment of the note, to treat the contract as forfeited, and to claim the amount of the account, they could not do so, and at the same time retain and collect the note of Holden.

. That by accepting payment of the notes, they waived the default, and affirmed the original agreement for satisfaction.

That the note of a third person accepted in satisfaction of a debt, though of less amount than the debt, is a full satisfaction.

(See 10 Barb. 373; 10 N. Y. 440, S. C.)