
    Edward S. Jaffray et al., Resp’ts, v. Siegfried Davis et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 18, 1888.)
    
    Debt—Not extinguished by payment of part in settlement.
    The defendant gave three promissory notes to the plaintiff for one-half of the debt due mm which were accepted in full payment of the claim. They were secured by a mortgage on personal property of the defendant, executed by him but which was not under seal. Held, that the giving of the mortgage did not take the case out of the rule that a promise to pay a smaller sum than that which is due to extinguish an existing debt does not operate as an extinguishment of the same.
    Appeal from a judgment.
    
      Joseph R. Newburger, for app’lts; Isaac L. Miller, for resp’ts.
   Brady, J.

The defendant gave three promissory notes to the plaintiff for one-half of the debt due him, which were accepted in full payment of the claim. They were secured by a mortgage on personal property of the defendant; executed by him, but which was not under seal. The rule established by Cumber v. Wane (1 Strange, 426), and in Pinnels Case (5 Coke, 117), which has been the subject of numberless controversies has been evaded by slight pretext as one obnoxious to common sense by the courts in England and in this country. In Foakes v. Beer 9 Appeal Cases) Eng. Rep.), two of the noble lords who wrote opinions, thought it would have been wiser and better if the resolution in Pinnell's Case had not been adopted but thought the rule too old to be departed from.

This view while it displays devotion to ancient error, proclaims that the law is not a progressive science, and that once a rule always a rule, is still a governing principle. We have not yet engrafted this mode of perpetrating wrong upon our system, and it is to be hoped we never will. In the same case, but in an earlier stage of it, (Beer v. Foakes, 11 Q. B. D., 221) it was said of the rule by Justice Watkin Williams: “Judges had long tried to escape from the doctrine which was a reproach to the law of England,” and this rested no doubt upon this absurdity, namely, that a larger could not be paid by a smaller sum, a figurative form of expression, shown to be so, for the reason, that if the sum accepted in full payment were given in the form of a note made or endorsed by another, or were represented by a chattel other than money, and of less value, it would bind the creditor.

In the case of Bidder v. Bridges reported April 2, 1883, (26 L. R., Ch. Div., 1), a check given by the plaintiff’s solicitor for costs due from the former for less than the sum, and accepted in full, was held to be an absolute payment, discharging the whole debt. Cumber v. Wayne and Pinnells Case and others kindred, were considered therein, and indeed the most recent of cases on the subject.

It does not need a high order of intellectual strength to understand the utter impossibility of reconciling, in a spirit of justice, the recognition of a prejudicial difference between money and a chattel leveled against the former, where the latter has the lesser value. The rule was, in fact, the result of a mathematical turn of mind in a judicial officer, who by force of habit or education, was in close sympathy with the subleties of special pleading and its exquisite refinements and exulted in them, in the application of which rights were often obliterated, and solemn compacts spurned for errors of form only. In modern days, it was thought by some, that from more enlightenment, the stride of intelligence, and a broader appreciation of right and duty, the rule would be rejected for its absurd conflict with the other and recognized mode of accomplishing the desired result as suggested, but it has not been.

Unhappily for the defendant herein, the point presented on his behalf was considered in Platts v. Walrath (Lalor’s Sup., 59), and passed upon adversely to his defense, and that decision is quoted with approbation and reaffirmed in Keeler v. Salisbury (33 N. Y., 648), where it was declared that a mortgage given by the debtor upon his own estate, to secure thex payment of the lesser sum agreed, upon, for full payment would not take it out of the rule. If the security had been given outright it was conceded that the accord and satisfaction would be complete, thus preserving and reasserting the difference between money and chattels, and re-proclaiming the antique antagonism. As long as that case stands, the debtor obtains nothing by his settlement, even when he does what he would not be obliged to do except as-a part of the settlement, and the creditor may with perfect nonchalance repudiate his agreement solemnly, and, therefore, understandingly made. If the defendant gave his notes endorsed by another, or any form of security involving another, the settlement would have been complete and binding. The suggestion of a new consideration would have made it so. It may be that this question will sometime receive further consideration in our court of last resort and with different results.

At present the law requires us to sustain the rule promulgated in the old cases referred to. For these reasons, without pursuing the subject further, it is apparent the judgment must be affirmed with costs.

Van Brunt, P. J., and Daniels, J., concur.  