Payton v. Wight

2 Hilt. 77

• Court: New York Court of Common Pleas
• Decided: June 15, 1858
• Status: Published

Opinion

By the Court, Brady, J.

The defendants sued Daniel Adee as endorser, and A. W. Metcalf as the maker, of two promissory notes of $500 each. Adee applied to the defendants for a discontinuance of the action against him, stating that if it were continued against him, it would embarrass him very much, and offering his notes, to be endorsed, in settlement. The defendants accepted the proposition of Adee, and ten notes were given, endorsed by Mr. James McAlister. Seven of the ten notes so given were protested for non-payment, and were not paid. The defendants delivered the $500 notes, upon this settlement having been made, to Adee, and he delivered them to Metcalf; and Adee insists that it was a part of the arrangement made between him and the defendants that judgment was to be perfected against Metcalf, and the judgment assigned to him by them. This is denied, and was one of the issues presented. The judge presiding at the trial found, on this issue, as follows: “That no agreement was made by the defendants with Adee to assign the judgment against Metcalf to him, except on payment of the notes given by Adee to them.” The evidence fully sustains this finding, and the judgment predicated upon it cannot be disturbed unless the delivery of the $500 notes to Adee—as it is claimed by the plaintiff in this action—operated as an assignment of the claim in suit against Metcalf, and entitled Adee to the judgment perfected against Metcalf, and to all the benefits to be derived therefrom. The authorities to which we were referred do not sustain such a proposition, and it is not the law in this state. Here, there was no agreeement to assign until the notes were paid, nor was there any agreement that the defendants should yield the personal liability of Metcalf until the notes given by Adee were paid. The defendants were entitled to judgment against Adee, and had a right, in addition to his personal responsibility and that of Metcalf, to require further security by way of endorsement, as a consideration for extending the time of payment and waiving the judgment. The fact being established, that there was no agreement to assign the judgment until the notes were paid, negatives all implied contracts in relation thereto, and defeats the application of any rule of law which would contravene that agreement. It was proper that the $500 notes should be given to Adee, because he had substituted other notes for them, and Metcalf’s liability upon them was merged in the judgment. They were no longer of value to the defendants, whose remedy upon them vras exhausted as to Metcalf, and released as to Adee. There is, however, another objection to the plaintiff’s recovery. This action is brought for a specific performance of an alleged parol agreement to assign a judgment, and it appears conclusively that the reciprocal obligation of Adee has not been performed. He has not paid the notes given as the consideration of the agreement to assign, and cannot recover, for that reason, on well establisted principles of equity. 2 Story’s Eq. Juris. §§ 736, 750, 769. It is said, in section 736, that if the obligations of the party seeking relief have been disregarded, or are incapable of being substantially performed by him, courts of equity will not interfere. It would not be equitable to compel an assignment of the judgment against Metcalf, the effect of which would be to apply its proceeds to the payment of a debt of Adee not in favor of the defendants, and to leave the consideration of that assignment unpaid.

Judgment affirmed.