
    Jane McKenzie et al., Resp’ts, v. Charles Harrison et al., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 22, 1890.)
    
    Lease—Executed parol agreement modifying written lease.
    Plaintiffs brought this action for rent due upon a lease under seal for ten years at $4,500 per year. Upon the trial defendants offered to prove that in the second year plaintiffs agreed to reduce the rent to $3,500, which was for three years paid quarterly; that each time a receipt in full was. given “ as per agreement, until times are better; ” that after the third year defendants paid the original rent until this action was begun. The offer was rejected and a verdict ordered for the plaintiffs for the full amount, Held, error; that in so far as the oral agreement had become executed, as to the payments which had fallen due and been paid and accepted in full, as per agreement, it modified the written lease.
    (Follett, Ch. J.. Bradley and Parker, JJ., dissenting.)
    
      Appeal from a judgment of the general term of the supreme -court, first department, overruling exceptions ordered to be heard in that court in the first instance and directing judgment to be ■entered upon the verdict directed by the court.
    
      N. B. Hoxsie, for app’lts; Edward W. Johnston, for resp’ts.
    
      
       Reversing 44 Hun, 629, mem.
      
    
   Haight, J.

This action was brought to recover the amount of Tent alleged to be due and unpaid upon a lease of real estate in the city of New York. It appears that the parties had made and executed a lease under seal whereby the plaintiffs leased to the defendants the store and premises known as Ho. 16 Fourth street for the term of ten years from May 1, 1877, for the annual rental -of $4,500 payable quarterly. Hpon the trial the defendants offered to prove in substance that after they had occupied the premises for one year under the lease and paid the rent in full for that year, that they reported to the plaintiffs that their business was very dull and that they could not afford to pay so much rent. That thereupon the plaintiffs agreed to reduce the rent $1,000 per year, making it $3,500 a year’, or $875 for each quarter. That thereafter the defendants at the end of each quarter paid the plaintiffs $875, and the plaintiffs executed and delivered to them a receipt for that amount in full for balance of rent due at that date as per agreement “ until times are better.” That this continued for three years, after which the plaintiffs notified the defendants that thereafter they wished them to pay the amount of rent originally provided for by the lease, and that thereafter the full amount of rent was paid until the commencement of this action in December’, 1886. This evidence was excluded by the trial court and .a verdict ordered for the plaintiffs for the full amount claimed.

The general term was of the opinion that the case of Coe v. Hobby, 7 Hun, 157; S. C., 72 N. Y., 141, disposed of the questions involved in this case. The facts in that case are very similar to those which were offered to be proved in this, but in that case the action was brought for a quarter’s rent which had become due, mo part of which had been paid, the lessor refusing to any longer accept the reduced amount agreed upon; and he did not seek or claim the right to recover the balance of the quarterly rents which had previously been paid in part under the agreement and for which a receipt had been given in full. The distinction therefore between the two cases is apparent. In that case the lessor was seeking to enforce the provisions of his lease which was under seal and collect a quarter’s rent then due and owing. The lessees were defending under an executory verbal contract to reduce the rent. Whilst in this case the lessees are defending under an executed oral agreement to the effect that the rent has been paid and accepted in full and is evidenced by a written receipt given therefor.

We shall not question the rule that a contract or covenant under seal can not be modified by a parol unexecuted contract. Coe v. Hobby, supra ; Smith v. Kerr, 33 Hun, 567-571; S. C., 108 N. Y., 31; 13 N. Y. State Rep., 115.

Heither shall we question the views of the court below to the effect that the alleged oral agreement in this case to .reduce the rent $1,000 per year was void and inoperative in so far as it remained unexecuted. The lessors had the right to repudiate it at. any time and demand the full amount of rent provided for by the-lease; but in so far as the oral agreement had become executed, as to the payments which had fallen due and had been paid and accepted in full as per the oral agreement, we think the rule invoked has no application.

The reason of the rule was founded upon public policy. It was-not regarded as safe or prudent to permit the contract of parties which had been carefully reduced to writing and executed under seal to be modified or changed by the testimony of witnesses as to the parol statements or agreements of parties. Hence therale that testimony of parol agreements shall not be competent as evidence to impeach, vary or modify written agreements or covenants under seal. But the parties may waive this rale and carry out and perform the agreements under seal as changed or modified by the parol agreement, thus executing both agreements ; and where this has been done and the parties have settled with a full knowledge of the facts and in the absence of fraud, there is no power to revoke or remedy reserved to either party. Munroe v. Perkins, 9 Pick., 298; Lattimore v. Harsen, 14 Johns., 330; McCreery v. Day, 28 N. Y. State Rep., 597.

So in this case, if as is claimed the parol agreement was made to reduce the rent $1,000 per year, and that agreement has been carried out and fully executed by the parties, and at the end of each quarter when the rent by the terms of the lease became due and payable, the reduced sum, as agreed upon by the parol agreement, was paid, and the parties settled upon that basis, and as evidence of such settlement the plaintiff gave a receipt in full for the amount of rent due to that date, it became executed and the plaintiff cannot revoke the same or maintain this action to recover any greater sum than that settled for.

It is also claimed that the oral agreement was void for the want of a consideration. Assume this to be so, and that the plaintiffs, at any time whilst the agreement remained executory had the right to demand the full amount of rent provided for by the lease. They, however, had the right to waive consideration and carry out. their parol agreement, and if they did this, executing it, they were brought within the rule to which we have already called attention.

To illustrate: A. may give B. his promissory note without consideration. As long as it remains in the hands of B., A. may interpose the defense that it was given for B.’s accommodation and was without consideration. But as soon as A. executed his promise to B. by paying the note his agreement becomes executed and he cannot recover back the money so paid.

It may be claimed that the payment of a less sum than the admitted debt is not a good accord and satisfaction. There are-numerous authorities sustaining this doctrine. Lord Coke stated the rule to be that where the condition is for the payment of a, definite, fixed, liquidated sum, the obligor cannot, at the time appointed, pay a less sum in satisfaction of the whole, because it is apparent that the lesser sum of money cannot be a satisfaction of a greater.

This rule has been criticised as unsound and unjust in cases where the lesser sum is accepted in full satisfaction of the greater. See Coke Littleton, 212 B; Foakes v. Beer, L. R., 9 App. Cas., H. of L., 605, 614, 617; Jaffray v. Davis, 48 Hun, 500; 16 N. Y. State Rep., 32.

Whilst in other cases the courts have gone still further and held that the rule applied even in cases where the payment was accepted in full satisfaction, and a receipt given therefor. Harriman v. Harriman, 12 Gray, 341; Smith v. Phillips, 77 Vir., 548; Bunge v. Koop, 48 N. Y., 225; Wilkinson v. Byers, 1 Ad. & El., 106 ; Langdell’s Select Cases on Contracts, 197, 201.

Under the view taken by us of this case, it does not become necessary to approve or disapprove of the doctrine promulgated in these cases, for this rule has no application when the payment is made under an agreement which is recognized as valid by the parties, and has been fully executed.

Again, a debt could be discharged at common law by executing a formal release under seal. The seal imported a consideration, and this has not been questioned by any of the cases.

There undoubtedly is a distinction between releases under seal and an ordinary receipt given on the payment of a sum of money which is not under seal, the latter being subject to explanation and proof showing that it was given without consideration.

But even though there may not be an accord and satisfaction, there may be a gift, and the, receipt may be evidence of such gift. A gift is a voluntary transfer of any property or thing by one to another without consideration. To be valid it must be executed. There must be a delivery by the donor such as will place the property or thing given under the control of the donee, and there must be an intent to vest the title in him. Actual and personal delivery by the donor is not always necessary, for when another person is the custodian an order of the donor to deliver to the doneee may constitute a gift. It may be oral or in writing. Ho formal words or expressions are required. It is a question of intent and the inquiry is as to what was intended by that which was said and done. A promissory note or other evidence of debt may.be the subject of a gift and the delivery of the note or of the evidence of debt is evidence tending to show an intent to give. A debt may be forgiven, and a receipt in full may be evidence of such forgiveness. 2 Schouler Personal Property, 68-90 ; see also Bishop on Contracts, § 50.

In the case of Gray v. Barton, 55 N. Y., 68, the defendant was owing the plaintiff the sum of $820. The plaintiff told him that if he would give him one dollar to make it lawful he would give him the entire debt. Whereupon the defendant delivered one dollar to the plaintiff who thereupon executed and delivered a receipt therefor in full to balance all accounts to date of whatever name and nature. It was held that the executing and delivery of "the receipt in full with the purpose of giving the debt was such an act that the law would construe the instrument if necessary as an assignment to the defendant.

This case is in point and is controlling upon tne question under consideration. See Ferry v. Stephens, 66 N. Y., 321; Carpenter v. Soule, 88 id., 251-256.

We are, therefore, of the opinion that the proo- offered should have been received; that from it the jury might have found that the plaintiffs gave to the defendant the balance of the rent for which this action was brought.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

All concur, except Follett, Oh. J., Bradley and Parker. JJ., who dissent.  