Flint v. Clark , 12 Johns. 374 ( 1815 )

Platt, J.,

delivered the opinion of the court. I think thé demurrer is good ; for, allowing all the averments in the declaration to be true, the plaintiff is not entitled to recover. The covenant, as set out in the declaration, does not bind the defendant, to do any act; he did not engage to endorse a receipt on the note for the amount of the award. It was an agreement by one of the joint creditors of the plaintiff, that the sum to be awarded should be deemed a payment pro tanto on the note; and that the plaintiff should have the full benefit of it, as a part satisfaction of the note. All the right and benefit which accrue to the plaintiff, from the covenant, are, that upon his paying the. balance of the note, over and above the sum awarded to him, the note is, in judgment of law, satisfied.

It must be presumed, (because the contrary is not averred,) that the note still remains in the hands of the original payees .3 and if so, the plaintiff has sustained no injury.

The covenant and the award, operate like a receipt, whereby. the defendant acknowledges so much paid on the note ; and it is enough for him, that when payment of the note is demanded, he can protect himself pro tanto, under the agreement and award. There can be no doubt that the agreement, in this sense, is binding upon Cyrus Clark, as well as the defendant.

If the declaration had averred, that the note had been assigned before it fell due, then it would have shown a right of action in the plaintiff; because he" would have thereby lost the benefit of the payment under the award.

There must be judgment for the defendant on the demurrer.

Let the plaintiff amend, &c,.