Curson v. Monteiro

2 Johns. 308

• Court: New York Supreme Court
• Decided: May 15, 1807
• Status: Published

Opinion

Thompson, J.

This action of assumpsit being foundfid upon the original undertaking of the defendant, the principal question in the case is, whether that contract was not extinguished by the agreement of the 23d of November, 1802, This agreement was by deed; taking it together, must, I think, be considered asan ex-tinguishment of the simple contract. The assignuient of the proceeds of the schooner Resolution is declared by the parties to be in discharge of the prior demand, and it is accepted accordingly. It was considered as terms of settlement and payment, for the agreement provides that the defendant shall, within six months, offer other terms of settlement, and if the plaintiff did not accept of them, he was bound by the assigment, as an absolute discharge and release to the defendant. The case of Knight v. Cox, which is cited in Fitch v. Sutton, ( 5 East, 231.) shows that a release will operate, though it be accompanied with.a new promise, and the party will be put to his remedy on such new undertaking.

If the defendant, within the time prescribed, did, according to, the covenant, offer other terms to the plaintiff, and the plaintiff did not accept of them, there cart be no doubt'that he is concluded by the assignment; the original contract is released and gone. Whether such offer was made, would more properly arise in a suit OH the covenant, because, admitting it not to have been made, there is still no ground for the present suit. The simple contract was absolutely extinguished, and the assignment was not made and accepted upon condition to be void, if the defendant did not make the offer. That is not the language of the agreement. The plaintiff was at all events to hold the assignment, unless surrendered at his own election, and he could only hold it upon the terms upon which it was accepted, which were in discharge of the prior debt.

The only remedy, if any, which the plaintiff has, is for a breach of covenant by the defendant, in not making the offer; and whether the offer actually made, was or was not a performance of the covenant, is another, question, which the parties have chosen to submit to the court in this action. Upon this point I am also with the defendant. — He was, within six months, to offer for the consideration of the plaintiff, other terms ofsettlement and payment; and the plaintifffaad fifteen days to elect whether he would receive them in lieu of the assignment* To say that an offer of less than the' whole amount of the debt could not be made, is construing the covenant too strictly. The terms of settlement to be offered were not specified, or defined in the agreement, and it is impossible for the court to say what specific terms were intended. It is clear the parties had not defined or understood them. They were to be left in the first instance to the discretion of the defendant, and the plaintiff had a given time to consider them. — They must of course have been terms undefined and uncertain in the contemplation of the parties. Ail that we can require, is, that the defendant should, bona fide, make an offer of terms valuable and certain, and not an offer of terms absurd and frivolous, for that would be in fraud of the covenantand it cannot, I think, be denied that the terms offered were of the former description. They were treated as such by the plaintiff, for time was asked to deliberate whether or not to accept them. By the agreement the defendant was discharged from his personal responsibility¿ and the plaintiff had agreed to accept, instead of it, a specified-fund, uncertain as to its product and amount. The terms offered were a personal responsibility to the amount of 1,000 dollars, and it is impossible for the court to say that this-offer was, under these circumstances, a fraudulent evasion of the covenant.

I am accordingly of opinion, that the defendant is entitled to judgment.

Kent, Ch. J. was of the same opinion. SpenceR, J. not having heard the argument, gave no opinion.

Judgment for the