Opinion
(December Term, 1845.)
1. In an action on a bond, one who is an obligor, but who is not a party to the action, may be examined as a witness for the defendant, his coobligor, and more especially when the defendant had executed a release to the witness.
2. A plea of accord and satisfaction to an action on a bond is not good unless it avers an acquittance under seal.
3. The acceptance by the obligee of a bill of exchange in discharge of a bond will, in an action on the bond, support the plea of payment.
(134) APPEAL from WAKE Fall Term, 1845; Settle, J.
W. H. Haywood for plaintiff.
Badger and Saunders for defendant.
Debt on a single bond, in which the defendant relied on the plea of payment. There was a verdict for the defendant, on which judgment was pronounced, and the plaintiff appealed. The case is presented by the following bill of exceptions:
Be it remembered, that on the trial of the issues between the parties aforesaid, before the Honorable Thomas Settle, judge as aforesaid, the plaintiff produced, proved, and gave in evidence a writing obligatory of the defendant and one Allen D. Dunn, dated 20 February, 1836, whereby they became bound to pay Green W. Ligon, the plaintiff's intestate, six months after the date thereof, $1,000.
And thereupon the defendant, in support of his plea of payment, offered to prove that in May, 1836, the said Allen D. Dunn procured in Mobile, from a bank there, a bank check or draft on the Merchants Bank of New York for $1,000, and sent the same to the defendant for the purpose of discharging the said bond; that the said check was received by the defendant, and by him, in the month of June following, was delivered to the said Green W. Ligon in payment of the said bond, and was by the said Green so received and accepted, and that the said Green afterwards, on the 20th of the same month of June, negotiated the said draft or check with one Richard Smith, at par, and received the cash therefor; whereupon the plaintiff objected to the said proof, because, if made, it would not establish a payment, but an accord and satisfaction only, and, therefore, was inadmissible and irrelevant under the defendant's plea of payment; which objection his Honor overruled, and allowed the said proof to be offered, and the plaintiff, by his said counsel, excepted.
Amongst other witnesses then called by the defendant was the said Allen D. Dunn, to whom the defendant had executed and delivered a full and general release, when the plaintiff's counsel objected that the said Allen, although released by the said defendant, was not (135) a competent witness in his behalf in support of the said plea; but the judge overruled the said objection and allowed the said Allen to be sworn and examined, and the plaintiff, by his said counsel, excepted.
And thereupon the defendant, having proved the said matters by him so offered to be proved, the plaintiff's counsel prayed the judge to instruct the jury that the matters so proved did not support the said plea of payment, and that the jury should find the issue joined thereon against the defendant, which instruction the judge refused to give, but, on the contrary, instructed the jury that the said matters did support the said plea, and that they ought to give their verdict on the said issue for the defendant; to which refusal and instruction, so given, the plaintiff, by his said counsel, excepted.
And at the request of the plaintiff's said counsel, the said judge did sign and seal this bill of exceptions, containing the said several matters and the exceptions so taken as aforesaid, pursuant to the statute in such case made and provided, on the said first Monday after the fourth Monday of September, 1845. THOMAS SETTLE, [SEAL]
We concur with his Honor on all the points to which the plaintiff has excepted. Allen Dunn was a competent witness. Although an obligor to the bond on which the action is brought, yet he is no party to this suit. If the plaintiff fail, it leaves him still open to his action, and if he succeeds he might be liable to the defendant either for contribution or for costs. But the release removes that difficulty, and renders him a competent witness, being entirely without any interest in the matter, except his responsibility to the plaintiff. This point is (136) directly decided in Moffit v. Gaines, 23 N.C. 159.
We see no error in the receiving of the evidence relative to the bank draft nor in the charge as to its effect. We think the evidence was both relevant and sufficient to sustain the issue on the plea of payment. The objection on the part of the plaintiff cannot be sustained. The evidence could not have supported the plea of accord and satisfaction. If it could not avail the defendant under that of payment, it could not avail him at all under any other. The action is on a specialty — a bond for the payment of so much money. It is a rule in pleading that as the plaintiff's action must have all things that are necessary and essential to support it, so the defendant's bar must be substantially good, and if the gist of the bar be bad, it is not cured by a verdict in favor of the defendant. At common law a single bill could not be discharged by payment alone; the obligation still remained in force, for it could be dissolved only by an instrument of as high character as itself. Eadem ligamine, quo ligatur, was the maxim of the common law. Platt on Covenants, 591. If, then, a defendant to a suit on such a bond had pleaded payment, without setting forth an acquittance, and the jury had found a verdict for him, he could have had no judgment, because the acquittance being the gist of the plea, it was bad without it. 2 Tidd's Pr., 921; 6 Coke, 43. And the rule is the same in pleading accord and satisfaction; and for the same reason, it must be pleaded to be by deed. Platt on Covenants, 592; 2 Will., 86. Preston v. Christmass. That was an action of debt on a single bill; the plea, accord and satisfaction. The plaintiff demurred, and for cause of demurrer showed that the plea did not set forth it was by deed. On the argument, the Court sustained the demurrer, and say: "This being an action of debt, on an obligation without any condition, satisfaction must be pleaded by deed." They rely upon 6 Coke, 43.
The common law, as to the plea of payment, remained until (137) the fourth year of the reign of Queen Anne. In that year the right to plead payment to such a bond was established by an act of Parliament. Section 12 of that act gives that plea. Before the passage of that statute the acquittance under seal was the discharge; the money paid, the consideration for it. The statute of Anne, however, makes no mention of the plea of accord and satisfaction; it still remains as at common law, and must be pleaded with an acquittance. Here, there was no acquittance; the defendant could not have pleaded accord and satisfaction, and could avail himself of the matters in discharge only under the plea of payment, and that under the statute of Anne. The evidence, then, was pertinent to the issue joined under the plea of payment. Was it sufficient to sustain the plea? Did the matters found amount to a payment of the bond? We think they did. The bond is a single one, dated 20 February, 1836, and payable six months thereafter. In the month of June, before the obligation became due, the defendant, with a view to discharge, transferred to the plaintiff a bank draft, which was received by him in payment of it, and in the course of a few days the holder negotiated it at par, and received the cash in amount equal to the bond. Why is this not a payment? A payment, it is said by 2 Stephens, Pl., 716, may be made in money or its equivalent. And Mr. Chitty, in his treatise on Contracts, 750, states that payment may be in money or in goods when the latter are received at an agreed value. Thus if A. hold a bond on B. for $100, and the latter deliver to the former a horse, valued by the parties at that sum, and the horse is received in discharge of the obligation, it is a payment, although the horse may die the day after the delivery. Payment may be made, also, in a bill of exchange, or a promissory note, though the receipt of neither is in itself a payment, for neither is money. But if received, and the creditor do not use the necessary diligence to get it paid, the defendant will get discharged. 2 Steph. Pl., 232, and the cases there referred (138) to. When at the time of the transfer it is agreed between the parties that the draft shall be received in payment, it will discharge the debt as a payment. Mayer v. Nias, 1 Bing., 311; Chit. on Con., 767. And that whether the creditor receives any money upon it or not, provided the note or draft be what it purports to be, genuine, and there be no fraud. 2 Starkie, 186. Nor is it necessary to show, in so many words, that the creditor did receive it as payment. In the case from 1 Bingham the agreement was inferred from circumstances. The action was brought by the plaintiff, as assignee of a bankrupt, against the defendant, to recover the value of goods sold and delivered, and which were to be paid for in cash. A brother of the bankrupt called on the defendant for payment, who paid him some money and a dishonored bill, upon which the bankrupt was acceptor. This the brother at first refused to take, but upon its being thrown down by the defendant, he took it up and carried it to the bankrupt, who received and never returned it. The Court observed "Was the bill accepted in payment? It was thrown down and perhaps rejected, but it was then taken up and carried to the bankrupt, who retained it; it was, therefore, a payment."
But the case before us does not rest simply upon the fact that the draft was received in payment by the plaintiff; there is this additional and most important one: The plaintiff actually received the full amount in cash. It is true, the money was received by him before the bond fell due, and it was not, strictly speaking, a payment at that time. The bond does not, by its terms, authorize a payment before 20 August. The money, when received by the plaintiff, was received to his own use, and when the bond came to maturity, the money being in his hands, the obligation was discharged.
PER CURIAM. No error.
Cited: Godfrey v. Leigh, post, 396; Carraway v. Cox, 30 N.C. 80; Curtis v. McIlhenny, 58 N.C. 291; Pritchard v. Meekins, 98 N.C. 247; Delafield v. Construction Co., 118 N.C. 110.
(139)