Bates v. Starr , 2 Vt. 536 ( 1830 )

Royce, J.

delivered the opinion of the court. — It seems to be ... , . , , necessary in this case to determine, whether the agreeement on which the plaintiff in error relies would constitute a defence to the action : for if it would not, the judgement of the county court ought not to be reversed, whatever our opinion might be of their decision upon the.exceptions taken. We would willingly avoid this point, as it was not taken in the argument; but as it. may at any time be assumed by the plaintiff below, we think it cannot consistently be passed over by the Court, and that we are bound to say, whether upon due proof of the agreement, with, the other facts stated in the report, the action would be legally barred or suspended. At the time when this agreement is alleged to have been made, the balance of accounts in favor of the plaintiff below was little short of $i00, being a larger sum than he finally recovered, exclusive of interest. And for, any thing appearing in the report, this was a debt then due in money, for which he was entitled to sue whenever he chose. Under such circumstances, the agreement, so long as the parties should continue to act under it, would doubtless operate to apply the balance of the new account, if in favor of the defendant, in liquidation of the former-balance in favor of the plaintiff. But the important question is, whether, if the plaintiff chose to put an end to the agreement, it would still have the effect to defeat or suspend his right of action for the old account. There are several ways in which a cause of action for a simple contract debt may be suspended-or destroyed without actual payment; as by a judgement recovered, an award made, a higher security taken, or by an accord and satisfaction. And it is not uncommon that such a disposition or appropriation is made of a subsisting debt, in the arrangement of some new undertaking or adventure, as would operate in effect like payment, and defeat an action for the debt. It is impossible however, to find in the present instance any thing but a stipulation, by which the debt due the plaintiff was to be gradually paid offir. a particular manner. And if this can operate to extinguish or suspend his right of action for the debt, it must have that effect either as an accord and satisfaction, or as a contract upon which the parties might have reciprocal remedies. It is stated upon the authority of a few old cases to which we have not had access, that mutual promises in relation to an antecedent debt may bar an action for such debt. The facts in neither of the cases are given, but one is said to have arisen under the statute of frauds.— 1 Com. D. 202. — T. Ray. 450. — 2 T. Jones, 158, 168. — On the other hand, it is laid down in all the books as a general principle, that an accord without satisfaction is not binding on the creditor,and the reason assigned is, that his agreement to accept a different satisfaction from the one to which he is entitled is without consideration, and also that “ accord executory is only substituting one cause of action in the room of another, which might go on to any extent.” — 2 H. Bl. 317. — There may be cases of a secondary contract executed on the part of the debt- or, or so far executed that he could not recede from it without great inconvenience, which are not intended to be affected by this decision ; like the one put by Buller, J. (2 T. R. 28,) and others which may readily be supposed. But we think the alleged promise of the creditor in this instance, to accept payment of his debt in the particular mode stated, would not be binding upon him, and that he would have a legal right at any time to decline a further execution of the contract, and recover such part of the old debt as should remain unpaid.

In computing the interest it is evident the auditors considered the principal sum reported, of $81 23, as part of the balance due in 1819, and they allowed interest upon it after one year from that time. This was consistent with the general usage and the course of decisions in this state. We have not followed the English or JVetv York practice upon this subject.

Judgement of the county court affirmed.