Koonce v. . Russell

9 S.E. 316, 103 N.C. 179

• Court: Supreme Court of North Carolina
• Decided: February 5, 1889
• Status: Published

Opinion

Avery, J.

The plaintiff’s counsel presented and relied upon the single point, for which he had contended in the Court below, that plaintiff was entitled to recover the su'm of four hundred and ninety-two dollars and twenty cents, being the difference between the aggregate amount due on the two judgments and the amount actually paid by the administratrix Olivia Russell, through her agent, in compromise for the whole.

If the compromise had been made prior to the passage of the act of 1874-75 (Laws of 1874-75, ch. 178, § 1, The Code, § 574), the payment of one thousand dollars would not have discharged the debt, hut would have been valid only pro tanto, leaving to the plaintiff the right to collect the difference between the sum paid and that actually due, as he seeks to do in this action, because the agreement to receive a part for the whole was held to be a nudum factum as to all in excess of the sum actually paid. Currie v. Kennedy, 78 N. C., 91; Hayes v. Davidson, 70 N. C., 573; Mitchell v. Sawyer, 71 N. C., 70; Love v. Johnston, 72 N. C., 415.

The contract,to accept one thousand dollars asa payment, in full of both judgments, was made, however, in October, 1885, and when the statute (The Code, § 574) was and had been for many years the law of the land. But the plaintiff’s counsel contends, that the last named act- could not be construed to apply to a debt, upon which the plaintiff’s intestate recovered judgment before it was enacted, because it would be a violation of sec. 10, Art. I, of the Constitution of the United States, to give to the law a retroactive effect, and he relies upon the case of Edwards v. Kearzey, 96 U. S., 595, to sustain the position. The parties contracted as to payment with reference to the law in force, when the contract was made, and, if such a receipt had been deemed a nudum factum, under the law then existing, as to any 'part of the debt, a subsequent act could not have supplied the want of consideration. But the compromise must be considered, just as though the statute (The Code, § 574) had been incorporated into the receipt given by the plaintiff.

“ The obligation of a contract consists in its binding force on the party who makes it. This depends upon the law in existence when it is made. These are necessarily referred to in all contracts, and form a part of them, as the measure of the obligation to perform them by the one party, and the right acquired by the other.” Cooley’s Cons. Lim., p. 285.

A law providing that, if creditors, in the exercise of their own judgment, voluntarily accept a part of a debt already in existence in discharge of the whole, cannot be held to impair the obligation of the original contract. Grant v. Hughes, 96 N. C., 177 ; Fickey v. Merrimon, 79 N. C., 585.

No error. Affirmed.