Gilmour v. Thompson , 49 How. Pr. 198 ( 1875 )

McAdam, J.

In Bean agt. Brookmire & Rankin (7 Bankruptcy Regr., at p. 575) chief justice Dillon laid down the rule applicable to this class of cases as follows: “ The rules of law respecting the good faith to be observed by all who unite in composition agreements are well known and well settled, and rest upon the soundest policy and upon the clearest principles of equity, commercial' morality and fair dealing. The temptation to obtain undue or secret advantages is so great,.that the necessity for the severe rules which have been declared by the courts to repress it is undeniable. All must be open and fair. If the creditor appealed to by his debtor makes it a condition of his uniting in a composition that he shall have any advantage not enjoyed or made known to the others, the transaction cannot stand either at law or in equity. It is a fraud upon creditors, and they can avoid it. It is treated as oppression or duress toward the debtor, and he may defend against any' promise to pay made under such circumstances; or, if he has actually paid, he may recover back the amount, as the law does not consider the parties as being in pari delicto, nor regard such payments thus made as voluntary, and allows such recovery on grounds of public policy (citing Breck agt. Cole, 4 Sandf., 79; Pinneo agt. Higgins, 12 Abb. Pr., 334; Atinson agt. Denby, 6 Hurl. & Norm., 778; on appeal, 7 id., 935; approving Smith agt. Bromley, Doug., 696, note; Clay agt. Ray, 17 Com. B., 188; Leicester agt. Rose, 4 East, 372; Jackson agt. Mitchell, 13 Vesey, Jr., 581; Knight agt. Hunt, 5 Bing., 432; Bradshaw agt. Bradshaw, 9 M. & W., 29; Wood agt. Barker, Law Rep. [1 Eq. Cas.], 139; Howden agt. Haigh, 3 Perry & Davison, 661; S. C., 11 Ad. & E., 1033; Higgins agt. Pitt, 4 Exch., 322; Wells agt. Girling, 1 Brod. & Bing., 447; S. C., 4 Moore, 78; In re Hodgson, 4 De Gex & Sin., 354; Mallalieu agt. Hodgson, 16 Ad. & E, 689; Cullingworth agt. Loyd, 2 Beavan, 385.” See, also, Beam agt. Amsinck, 8 B. R., 288; 36 N. Y., 128; 22 How. Pr. Rep., 164; Carroll agt. Shields, 4 E. D. Smith, 466; Beach agt. Ollendorf, 1 Hilt., 41).

In Smith agt. Cuff (6 Maule & S., 160) it appeared that the defendant, being a creditor of the plaintiff, entered "into a composition deed with the other creditors to receive ten shillings on the pound, under an agreement with the plaintiff that he would give defendant his promissory notes for the remainder of the debt; which notes were accordingly given, and the composition was paid to defendant, and he negotiated the promissory notes, the holder of one of which enforced payment from plaintiff by action; and it was held that plaintiff might recover back the amount from the defendant in an action for money paid, had, and received. The case just cited is like the one now under consideration. Lord Ellenbobough, C. J., in the last case, said: “ This is not a case oipar delictum: it is oppression on one side, and submission on the other; it never can be predicated as par delictum when one holds the rod and the other bows to it. There is an inequality of situation between these parties; one was creditor, the other debtor, who was driven to comply with the terms which the former chose to enforce. And is there any case where money having been obtained extorsively and by oppression, and in fraud of the party’s own act, as it regards the other creditors, it has been held that it may not be recovered back? On the contrary, I believe that it has been uniformly decided that an action lies.” In the case under examination the defendant, as in the case cited, negotiated the note before maturity to an innocent holder for value, and without notice. ■ In his hands there was no defense to the note, and its payment, under circumstances leaving the plaintiff no other option, was not voluntary but coercive.

In Wilson agt. Ray (10 Ad. & E., 82), it appeared that plaintiff, being about to compound with his creditors, defendant, a creditor, refused to subscribe the deed unless he were paid in full. Plaintiff, to obtain his signature, gave a bill, payable to defendant’s agents, for the difference between twenty shillings in the pound, and eight shillings, the proportion compounded for ; defendant then signed the deed. Plaintiff did not honor the bill when due; but on subsequent application, he paid it, some months after the dishonor, by two installments, to the payee, and defendant received the money. The other creditors were paid according to the deed, and the court held, that plaintiff could not recover back the amount paid to defendant above eight shillings in the pound, for that the transaction had been closed by a voluntary payment, with full knowledge of the facts, and ought not to be reopened ; and that it made no difference that the sum in question had not been recovered by action. In the case cited, the plaintiff was under no obligation to pay the bill; it was held at maturity by the payee; and the defendant, with full knowledge of these facts, paid the amount of the bill in two installments. The defendant, having the option whether he would pay the bill or not, voluntarily closed the transaction by payment, and there was no reason why it should be reopened; but in the present case this voluntary element is wanting, and the payment was coerced and involuntary (Smith agt. Cuff. supra).

The defendants claim that Smith agt. Cuff does not apply 'to this case, for the reason that the note was given after the defendant signed the composition deed; and that, having had his locus poenitentie, the giving of the note was relieved from the effects of coercion or duress, and cites Atkinson agt. Dealy (6 Hurl. & Nor., 778) and Higgins agt. Pitt (4 Exch., 325) to sustain his position.

We do not think these cases go as far as the defendants contend.

The consideration of the note was fraudulent, for the reasons stated, and, although given after the composition deed was executed, it was part and parcel of the original corrupt agreement exacted, before the deed was signed, as a condition for its execution; and there is nothing in the case to take it out of the rule laid down in Smith agt. Cuff, (supra).

For these reasons, the justice at the trial term very properly found for the plaintiff, and the judgment rendered by him is therefore affirmed, with costs and thirty dollars allowance.

Alker, J., concurred.

On appeal to the general term of this court, present chief judge Daly and judges Eobiksok and Larremore, the judgment of the marine court, general term, was affirmed, in the following opinion: