Goodrich v. Stanley

24 Conn. 613

Opinion

Storrs, J.

The first and last assignments of error in this case are so general, that they cannot here be noticed under our rule, in relation to assignments of errors on proceedings in error, which requires that the precise matters of error, or defects in the proceedings in the court below, relied on as grounds of reversal, shall be set forth. Rules of Prac., Ch. 13. 18 Conn. R., 572.

The assignments of error, from the second to the eleventh inclusive, only present questions which were decided by us on the writ of error, brought on the first decree rendered in this case. 23 Conn. R., 79. We see no reason for disturbing any of those decisions, and a further notice of those exceptions is therefore unnecessary.

There is no semblance of foundation for the claim set up in the twelfth assignment of errors, that the committee exceeded its powers on the second hearing, in finding a different sum to be due on the note, for which the mortgage was given, from that which was found due on the first, and it has not been seriously insisted on. It was only a correction of an error in their first report, which they were expressly authorized to make.

The superior court, on the hearing of the remonstrance to the additional report of the committee, properly excluded the testimony, offered by the defendants, to prove that the evidence before the committee was not sufficient to warrant their finding the particular fact mentioned in the remonstrance. It is well settled that the court will not entertain the enquiry, whether a committee in chancery has mistaken the weight of the evidence before them. Their report, in this respect, stands on the same ground as a finding of facts by the court itself, or a report of auditors in an action of book debt. The former is obviously conclusive, and, as to the latter, we have decided, at the present term, in Colegrove v. Rockwell, (ante p. 584) that the enquiry, whether it is founded on sufficient evidence, should not be entertained.

The exception taken to the competency of the committee as witnesses to prove the circumstances under which the testimony was received by them, to show notice of the assignment to Goodrich, has not been pressed before us, and is plainly unfounded.

This disposes of the fifteenth assignment of errors.

The superior court finds that the testimony last mentioned was objected to by the defendants, but received by the committee, subject to objection, and that it was excluded from the consideration of the committee in making their finding, although it was not formally ruled out. As it appears, therefore, that it was ultimately excluded, it stands on the same ground as if it had been excluded in the first instance. The defendants could suffer no possible injury by its introduction under these circumstances, and on this point there is no just ground of complaint under the fourteenth assignment of errors.

The thirteenth is the only exception to this decree which remains to be examined. It is founded on the finding of facts by the committee in their additional report, and sets up that the agreement as therein found, respecting the payment in work and labor, of the note, on which the mortgage, sought to be foreclosed in this case, was given, constituted a full accord and satisfaction of said note, and therefore a complete defence to it against either Booth or Stanley. The validity of this exception depends on the true import of the finding as to the terms of that agreement.

The defendants claim that it is found that, after the note became due, and before its transfer to the plaintiff, there was a mutual agreement between Booth and Goodrich, in which the latter promised that he would continue to labor for the former, until the amount due on the note should be fully paid by such labor, and the former promised that he would accept said labor and apply it in satisfaction of the note ; that it was then further agreed between them, that the promise of Goodrich should be accepted by Booth in satisfaction of the note, and that it was so accepted; and the defendants insist that this substitution of the promise of Goodrich for the note was an extinguishment, by way of accord and satisfaction, of such note, and therefore constituted a valid defence to it against Booth, and consequently against the plaintiff, his assignee. If Booth accepted, in satisfaction of the note, the promise of Goodrich to pay the amount due upon it in his labor, and did not merely agree to accept such labor, when it should be performed, in satisfaction of it, and that was a valid promise, on which, upon its non-performance, an action would lie in favor of Booth, the authorities appear to be decisive to show that such acceptance would be an executed accord, which would be a satisfaction and extinguishment of the note. The principle is laid down in Com. Dig. “Accord,” (B. 4,) on the authority of Case v. Barber, T. Raym., 450, S. C. T. Jones, 158, that “ an accord with mutual promises to perform is good, though they .be not performed at the time of action; for the party has a remedy to compel the performance; but the remedy ought to be such that the party might have taken it upon the mutual promise at the time of the agreement;” the meaning of which is, that an acceptance, in satisfaction of a debt, of an accord or agreement, with mutual promises to perform, on which the party has a legal remedy for its non-performance, is a good satisfaction of such debt, although such promises are not performed. And this principle has been repeatedly and fully sanctioned by modern cases. Good v. Cheesman, 2 B. & Adol., 328. 1 Smith’s Leading Cases, 150. Evans v. Powis, 1 Weis. Hurls. & Gor., 601. In order that such an accord should be a defence to the original debt, it is necessary, in the language of Parke B. in the case last cited, that the plaintiff should have “agreed to accept the agreement itself, and not the performance of it, as a satisfaction for his debt, so that if it was not performed, his only remedy would be by an action for the breach of it, and not a right to recur to the original debt.” There must be a valid agreement substituting a new cause of action in place of the old. It is not sufficient that there is a mere accord between the same parties, with mutual promises, but there must be a new agreement with a new consideration. Although this doctrine, well established in the English cases, appears to have been regarded with disfavor by some of the courts in this country, we do not perceive why, on principle, an acceptance of a new and valid promise, which can be enforced in substitution of an existing claim, should not be held to be as effectual a satisfaction and extinguishment of such claim as the acceptance of any other thing. But, according to the view which we take of the finding in this case, it is not necessary to pursue this particular point further, or to examine the question which is, in this case, connected with it, and which might be attended with more difficulty than the main doctrine itself, namely, whether the promise of Goodrich, if the agreement between him and Booth were such as is claimed by the defendants, was one which was founded on a valid consideration, and on which, therefore, Booth could have maintained an action for its non-performance. For we are of opinion that, on the finding in this case, the agreement between Booth and Goodrich was, as claimed by the plaintiff, only that the former would accept the labor of the latter, and not merely his promise to render it, in satisfaction of the note held by the former, and that, therefore, as such labor had not been performed and accepted by Booth, when the note was assigned to the plaintiff, such agreement was then only an unexecuted accord, which by the familiar principles applicable to the doctrine of accord and satisfaction, not only constituted no satisfaction of the note, but imposed no legal duty either on Booth prior to the assignment, or on the plaintiff afterward, to accept of such labor, even if it had been tendered. 5 Coke, 79. 1 Stran., 573. 2 Pars, on Con. and cases cited, p. 198.

Notwithstanding the ingenious turn which has been given by the defendants’ counsel to the finding of the committee, we think that the only construction, of which it is fairly susceptible, is, that there was a mutual agreement between Booth and Goodrich that the latter should perform labor, and the former receive such labor, in payment of the note. It was only an agreement that the note might be paid in that particular manner. Booth did not agree to rely on the mere promise of Goodrich to perform that labor, but on the performance of the promise. There were indeed mutual promises of the parties, and the promise of one was the consideration, or inducement, of the other; but on looking at the character and terms of the agreement, we find that the promise of one was to pay the note in labor, and that of the other was to accept in payment of it, not such promise, but such labor. It is like the ordinary case, where parties agree that an obligation shall be paid in a particular mode other than according to its terms, in which there are, of course, mutual engagements, on the one side to pay, and on the other to accept payment, in that mode, but the promise so to pay is not understood to be in itself, and independent of its performance, a payment or satisfaction of such obligation; and in that case, the mere circumstance, that there was an agreement with mutual promises, does not have the effect of extinguishing the obligation. Where it is claimed that it is so extinguished, it ought most explicitly to appear that such was the intention of the parties. In this case the committee do not find expressly, nor even by reasonable implication, that the promise of Goodrich was agreed to be received in satisfaction of the claim of Booth on the note; but, on the contrary, as if to exclude that idea, they find only that the former promised to continue to labor for the latter until the note should be fully paid, and that the latter promised to apply such labor in payment of it. This implies that it was understood, that the note should remain a subsisting debt until the labor should be performed, and that only then it should be extinguished by the application upon it of the labor. And, as if further to place the meaning of the committee beyond all doubt, as to whether the promise of Goodrich, or his labor, was agreed to be accepted in satisfaction of the note, they find that “ said Booth did agree to accept said labor in satisfaction of said note.” (See Bates v. Starr, 2 Verm. R., 636.)

Such being the agreement between the original parties to this note, the plaintiff took the assignment of it, subject only to what had been previously paid and received upon it in the services of Goodrich, (and which, in conformity with our decison in this case, when it was formerly before us, has been applied on it,) and. with the right to require the balance due on it in money, according to its terms. The decree in this respect, being made on this principle, is correct.

The judgment complained of is therefore affirmed.

In this opinion, the other judges, Hinman and Ells» worth, concurred.

Judgment affirmed.