Draper v. Hitt , 43 Vt. 439 ( 1871 )

The opinion of the court was delivered by

Wilson, J.,

The referee finds that the defendant on the 5th day of February, 1868, by agreement of the parties, executed his note of $40, and delivered it to the plaintiff; that the plaintiff then received said note in satisfaction of a note he then held against the defendant of $60, dated May 4, 1857, and that the plaintiff, at the time he so received the note of $40, surrendered to the defendant the original note. The facts- of this case bring it within the principle decided in the case of Ellsworth v. Fogg & Harvey, 35 Vt., 355. In that case the court held that the acceptance by the holder of a promissory note of part of the amount due upon it, in satisfaction and discharge of the. whole note, and the surrender of the note by the holder to the maker to be canceled, is a full discharge of the note and no action can be maintained for the unpaid portion. In that case the court recognize the old decisions, that p^hmt of part in discharge of the whole does discharge the wholoUKfewn by a release under seal, but if shown by a written agreement-ifr receipt, or any proof short of a release, it does not. The court there held that the surrender of a note, by the owner to the maker to be canceled, is equivalent to a release. In this case the note of $40 was received by the plaintiff as payment of the note of $60, which was surrendered to the maker. The legal effect of the accord and satisfaction, as a discharge of the original note, is the same as it would be if the $40 had been paid in money at the time that note was surrendered.

The tender, having been made subject to the condition that if the plaintiff took the amount offered it was to be in full payment of all claims of the plaintiff, is invalid. The case does not show that the plaintiff said or did anything at the time the tender was made, that would operate as a waiver of his right on trial to object to the conditional form in which the money was offered. The judgment of the county court is reversed, and judgment for plaintiff to recover the lesser sum reported by the referee.