Therasson v. Peterson

4 Abb. Ct. App. 396

Opinion

By the Court.

Wright, J.

[After reciting the facts, and observing that no question of fraud was available.]—The sole point is, whether the matters alleged in the defendants’ answer,

* and proved on the trial, were a defense to the action.

I am of the opinion that the transaction was good as an accord and satisfaction. The defendants were in an insolvent condition, and unable to meet their debts as they matured, but had a large amount of property on hand of uncertain value. Under these circumstances an agreement was entered into between them and certain of their creditors, among whom were the plaintiffs, whereby the said creditors, in consideration that the defendants would transfer, surrender and convey to three persons named as trustees, all their copartnership property of every name and description (except the sum of one thousand dollars to each of the defendants to provide for their personal debts), in trust, that the said trustees should dispose of the same as they should deem most for the interest of all concerned, and dispose of the proceeds of the property so as to be conveyed equally among all the creditors of the defendants, without preference, except for such amounts as were covered by collateral securities already pledged, agreed to release and discharge the defendants from all and every debt or indebtedness due and owing, or about to be due and owing, from the defendants to them respectively. The defendants fully performed the agreement on their part, by making the assignment to the persons named, and actually putting the property in the possession of the trustees.

This was a valid agreement of accord as between the parties to it. But it is claimed to have been an accord executory merely. The future transfer by the defendants to the assignees, it is said, is what the plaintiffs agreed to receive in satisfaction of their claims, and this assignment they must accept to make it a good accord and satisfaction. That until then, all the defendants have proved is a mere executory agreement upon the part of the plaintiffs, not followed by any act of acceptance of the saiisfaction tendered by the plaintiffs. I am not prepared to adopt this view. On the contrary, I think the true view of the transaction, is, that before the agreement was executed by the making of an .assignment, the assignment was in the nature of a composition. After being executed by the making of the assignment and the delivery of the property, it was a full accord and satisfaction. The true rule in respect to accord and satisfaction is, that when the debtor has done all that the creditor has agreed to accept in satisfaction of the pre-existing obligation, the accord is sufficiently executed. I am for affirmance of the judgment.

All the judges concurred, except Porter, J., not voting.

Judgment affirmed, with costs.

The original answer pleaded the facts as a release, but on the trial, and before the proofs were put in, defendants were allowed to amend and plead the same facts as an accord and satisfaction.