
    Robert Harper v. Isaac Graham.
    "Where a party recovered a judgment against another who was insolvent, and the plaintiff afterward agreed to receive from him the sum of $550 on the judgment, and the payment of $100 for attorney’s fees, which sums wore paid accordingly, and a receipt in full given for the judgment, although both sums amounted to much less than the judgment: Hold, that a satisfaction of such judgment would, from this state of facts, be ordered to be entered. 
    
    Certiorari to the court of common pleas of Butler county.
    Isaac Graham recovered judgment against Robert Harper, at the September term, 1844, of Butler common pleas, for $1,716.86, and plaintiff’s costs, $52.99; the defendant’s costs taxed at $19.91.
    Harper was then residing in Arkansas. Graham procured a certified transcript of the judgment, and forwarded it to Paschal *& Ogden, attorneys at law in Arkansas, for collection. Harper was notoriously insolvent. Divers propositions of compromise were submitted and considered by Graham’s attorneys, on the one part, and Harper on the other; and, finally, on .March 4, 1847, it was proposed by Graham’s attorneys and agreed to by Harper, that—
    Harper should pay on the judgment.......................... $500 00
    The attorney’s fees of Paschal & Ogden and
    Floyd.................................................$100 00
    The costs of Graham in the judgment............ 52 99
    Cost of the transcript................................. 3 50
    - 156 50
    ■ $656 50
    
      —which was to be received in full satisfaction and discharge of the judgment. Harper paid to said attorneys $656.50 in specie, and they delivered up to him the transcript of tho record, with the following indorsement:
    “Received of Robert Harper $656.50, in specie, in full payment and discharge of the foregoing judgment, remaining of record in the court of common pleas, in Butler county, Ohio. Given under our hands, March 4, a. d. 1847.
    (Signed,) “Paschal & Ogden,
    “Vm. W. Floyd,
    “ Attorneys for plaintiff.” ■
    
    Paschal & Ogden wrote to Graham by letter, dated March 14, 1847, stating, in substance, that they had made the best settlement with Harper in their power, and that they leave their acts to his (Graham’s) ratification ; that Harper was preparing to go to the Rio Grande ; that they had no process for arresting debtors; that Harper had proposed to pay $500, and that they agreed to take $556.50—Harper paying their fees and Floyd’s fees, $100; that they refused to give a release; that they believed none of Graham’s rights to a future action were waived; 1. Because a judgment can not be released except under seal; 2. Because to sustain a plea of payment in *money, the payment must have been in full of principal, interest, and costs.
    They advise the acceptance of it, and suggest to let the matter sleep until Harper releases his property, or gets under way; and they add :
    “But if you fear that your rights will be prejudiced, and wholly dissent from the settlement, return to us the draft, and we will return the money to Harper, and place everything in statu quo. We did with this business as we should with our own; and believing your statements about him, we feel no conscientious scruples about reserving for you a future right. Wo trust you will be satisfied.”
    They inclose a draft for $550, with a statement showing the manner in which the money was appropriated, and also a copy in substance of the receipt upon the transcript of the record, given by them to Harper.
    The affidavit of Graham shows that he received the check for $550, with a full knowledge of all the facts, and appropriated the same to his own use by entering in his own handwriting, on the execution docket, in Butler common pleas, in the said case of Isaac Graham v. Robert Harper, “ money paid, $550.” The excuse offered for not returning the check and disavowing the settlement was, that his (Graham’s) counsel in Ohio wore of the same opinion with the counsel in Arkansas, “That his acceptance of a part of said judgment without legally authorizing any person to satisfy the same under seal, would not preclude his further proceedings to recover the balance.”
    Prior to the compromise and payment by Harper, in March, 1847, Ployd, one of the attorneys in Arkansas, who aided Paschal & Ogden in the compromise, wrote to Graham, in Ohio, advising him that it would be best to compromise with Harper, by taking less than the whole amount. Graham replied by letter that he would not take less than the amount of the judgment, interest, and costs, and this instruction was communicated *to Paschal & Ogden, but the witness, Ployd, the attorney, does not remember whether or not Harper was informed of this.
    Graham, in an affidavit filed on the motion to enter satisfaction, states that he wrote to Paschal & Ogden that he would sooner lose the whole debt than accept $500, but that he would accept $580, and proper security for the residue of his claim.
    In the letter of Paschal & Ogdon, of March 14, 1847, before referred to, and which was offered in evidence by Harper on the motion to enter satisfaction, there is this statement: “ Through a gentleman at Clarksville, he (Harper) proposed to pay us $500, etc. We showed Harper and his attorney our letters, and refused to give a release.” None of the witnesses testify that the letters were shown.
    The depositions of Turner L. Green and W. W. Ployd show that Harper was considered entirely insolvent; that Harper raised said money tbi’ough the assistance of friends; that the settlement was made in entire good faith, and intended as a complete discharge of the judgment; that Graham’s attorneys considered they had made an advantageous settlement for their client. Green, who was Harper’s attorney, swears that the attorneys for Gi’aham distinctly asserted “their full and complete power to compromise the judgment; ” that Harper so understood it—otherwise he would not have paid a dollar; that Graham’s attorneys stated that if the receipt they had given was not satisfactory to Harper, they would sign any receipt that would satisfy him.
    Harper presented his transcript of the record, thus receipted, to the clerk of the court of common pleas of Butler county, who copied the receipt on the margin of the record of the cause. Graham afterward caused an execution to be issued upon the judgment, to collect the balance of the judgment; whereupon Harper filed in said court of common pleas, his motion to sot aside the execution and to have satisfaction entered upon said judgment. The cause was submitted to the ^associate judges, at the February term, 1851, who overruled the motion “ upon the ground that the testimony adduced did not show a good accord and satisfaction,” to which Robert Harper excepted.
    The writ of certiorari is sued out to reverse said decision.
    The errors assigned, are :
    1. That tho court erred in deciding that the payment by Harper of $500 on the judgment, $56.50 for plaintiff’s costs, and $100 for Graham’s attorneys’ fees, did not constitute a good accord and and satisfaction.
    2. The court erred in deciding that the testimony did not show-sufficient grounds to authorize an entry of satisfaction on said judgment.
    3. The court erred in overruling Harper’s motion.
    Thomas Milliken, for plaintiff:
    Do the facts show a valid accord and satisfaction? It appears to have been generally held, that the payment and acceptance of a less sum than the debt can not be insisted on as a satisfaction; but the courts will avoid this rule whenever they can, and there are many exceptions to the general rule. Brooks v. White, 2 Met. 285; Kellogg v. Richards, 14 Wend. 116; 5 Johns. 269; 14 Wend. 119; Blinn v. Chester, 5 Day, 360; Brooke v. White, 2 Met. 285 ; 2 Greenl. Ev., sec. 48; 20 Johns. 78 ; 1 Amer. Com. L. 137; 5 East, 230; Reynolds v. Pinhowe, Croke Eliz. 429; 14 Wend. 117; 2 Greenl. Ev., sec. 28; 20 Johns. 76; 15 Mees. & Wolsby, 23, reversing Cumber v. Wayne, Strange, 426; Slofford v. Bacon, 1 Hill, 538.
    The case at bar comes within acknowledged exceptions to the general rule.
    1. It was a benefit to Graham to receive the money without suit, and to prevent a writ of error, by which the judgment might have been reversed.
    *2. The money was paid at a different place than that contemplated by the parties.
    3. Harper paid the attorney’s fees of Paschal & Ogden and Floyd, $100; the plaintiff’s costs in the transcript, $52.99; cost of the transcript, $3.50. Here was not only a technical, but a substantial consideration.
    Graham was bound to pay his own cost in the transcript, if the same could not bo made of Harper. Swan’s Stat. 405, sec. 51. The attorney’s fees, and the cost of the transcript, Hai’per was not bound to pay, and it was a substantial benefit to Graham to have them paid by Harper.
    Graham recognized the payment of his attorney’s fees and the costs of the transcript, as a separate and independent consideration ; for with a full knowledge of all the facts, he entered upon the exécution docket of Butler county a credit of $550, the amount of the draft, instead of $656.50, the amount actually paid.
    4. Harper was insolvent—this is admitted. The money was raised through the assistance of friends. This is a technical consideration at least.
    The evidence of the debt was the certified transcript; this was not only receipted, but delivered up to Harper, which of itself implied a release. See Bouvier L. Dic., tit. Release.
    In relation to the authority of Paschal & Ogden to make the settlement, there can be no question. I. admit the record shows no authority to make the compromise; but the facts show a full and complete ratification, and that, too, after taking the advice of counsel.
    Ratification once made with full knowledge of all the material circumstances, can not be recalled. Story on Agency, 291, 293; Palmerston v. Huxford, 4 Denio, 167.
    A principal can not ratify a part and repudiate the balance— ratification of part confirms the whole. Farmers’ Loan and Trust Co. v. Walworth, 1 Comst. 447; Story on Agency, 299, 300.
    *A subsequent ratification is equivalent to an original authority. Story on Agency, 293, 294.
    As Graham acted with his eyes open, the court will not stop to inquire whether he acted wisely or not, or whether he will be gainer or loser by the decision which he made. The fact that Graham and his attorneys secretly intended to violate a solemn agreement, to take refuge under a legal technicality, and thus harass an unfortunate debtor, will not make the ratification less complete and effectual. 1 Comst. 447.
    John R. Lewis, for defendant:
    The proposition, that “the payment and acceptance of a less sum than the debt can not be insisted on as a satisfaction, is a well-established rule of law, announced in most of the authorities cited for plaintiff.
    The case of Reynolds v. Pinhowe, which is the only case directly in point, cited by the counsel for the plaintiff on this branch of the case, is, to say the least, of doubtful authority. The case is very meagerly reported, and stands alone, unsupported by any. other authority. Though not expressly overruled, I find no instance in which it has been confirmed, and indeed in the same volume of reports (Cro. Eliz., case 74, Dixon v. Adams), the principle is decided directly contrary to the case of Reynolds v. Pinhowe; In that case J. S. and J. D. were obliged to Adams in £40, and thereupon he sued J. S. in the Queen’s Bench, in which suit Dixon became bail. Adams recovered, and upon a scire facias against Dixon (the bail) had judgment against him, and he, without other process, paid the condemnation, and Adams, in considerations inde, assumed to Dixon to deliver unto him the principal obligation, and a letter of attorney to sue it against J. D.; and for non-performance hereof the action was brought, and upon non assumpsit pleaded, and found for the plaintiff, he had judgment; and thereupon error brought, because it was not a sufficient consideration. And so it was held by the whole court, for Dixon had *not done any act whereto the law would not have compelled him.
    ; But leaving these cases in which the rule has been admitted to exist, and the exceptions to it pointed out, I turn to those cases in which the point has been presented directly to the court, and how runs the current of authority ? •
    In the case of Seymour v. Minturn, 17 Johns. 175, where the question was directly raised, the court say, “ The cases of Harrison v. Wilcox & Close, 2 Johns. 449; Fitch v. Sutton, 5 East, 232; and Cumber v. Warn, 1 Strange, 426, are decided authorities to show that the payment of a loss sum of money than the real debt, will be no satisfaction of a larger sum without a release by deed.” And again, “ Where there is an agreement upon an adequate consideration, to pay a sum certain, the promisor can not avoid that agreement by an agreement to receive a less sum.” In the case of Harrison v. Wilcox, cited above, the question was directly decided, and the court there say, “ The caso of Fitch v. Sutton, and the authorities there cited, go to show that the payment of the twenty-one dollars and fifty-five cents in this case, without a release by deed, is no bar to the demand, and that the promise to look only to Close is a nudum pactum. Dederich v. Leman, 9 Johns. 333; Watkinson v. Inglesby, 5 Johns. 391; Mechanics’ Bank v. Hazard, 13 Johns. 357.
    1. But it is said this case is taken out of the general rule. It was a benefit to Graham to pay without suit. Certainly no more benefit can accrue from payment without suit on a record, than upon payment without suit upon a bond which has been decided not to be a good accord and satisfaction. 9 Johns. 333; 13 Johns. 337.
    2. “ The money was paid at a different place,” etc.
    I admit that where a less sum has been paid at a place different from that where the defendant had, by his contract, bound himself to pay it, it has been held to be a good accord and satisfaction; but the case is widely different from that where a debtor absconds from the jurisdiction where a judgment *has been obtained against him, and his creditor has been compelled to follow him to enforce payment.
    But it is said that inasmuch as that part of the money paid by Harper was appropriated to the payment of costs and attorney’s fees, that this formed a substantial consideration for relinquishing the balance of the judgment. The evidence of Turner L. Green, taken by Harper, shows that the whole sum paid was considered a payment on the judgment. After testifying to the first offer of $500, he says, “ Graham’s attorneys thought the sum too small, but finally they agreed, or rather Paschal agreed, if Harper would pay the amount over and above $500, sufficient to pay the cost of the suit had in the court of common pleas, Butler county, Ohio, and attorney’s fees, to wit, fifty dollars, or some such sum, to Paschal & Ogden, and fifty dollars to W. W. Floyd, which said costs and fees amounted to the sum of $156.50, that they would compromise the debt.” The import of this language clearly is, that the $500, together with so much more as was necessary to pay costs and fees, was to be paid by Harper on the judgment. But we need not be technical in the construction of language; there is no escaping from the fact that here the payment of a less sum in money is set up as a discharge from a judgment for a greater amount.
    As to the evidence of the debt being delivered up, it is sufficient to reply, that the record of the judgment still subsisting and iu force, is the evidence of the debt, and the delivery of a mere copy certainly can not operate to discharge it.
    But it appears further, from the evidence, that the compromise-was not only made without authority, but that Harper knew that it was so. In the letter of Paschal & Ogden to Graham (offered in evidence by plaintiff in error), they state, “We showed Harper and his attorney our letters, and refused to give a release !” He therefore acted with his eyes open, and the court will not strain the law in favor of a debtor who had once absconded, and, when on the point of doing so again, ^compromised a claim with attorneys in a way which he knew was against the express directions of their client.
    
      
       Where, in an action of trespass against five, the plaintiff accepts a note from two, payable at a future clay, in satisfaction of the trespass, as to the two, but not to operate as a satisfaction as to the other defendants, the causo of action is satisfied aud discharged as to all. Ellis v. Bitzer, 2 Ohio, 89.
      An accord, on mutual promises to perform, is not good if there bo no performance before action is brought. Erost v. Johnson, 8 Ohio, 393.
      Accord and satisfaction may be given in evidence under the general issue in assumpsit. Stewart v. Saybrook Tp., Wright’s S. C. 374.
      The plea of accord, etc., with George E., agent, is not sustained by proof of an accord with John E. Chappell v. Phillips, Wright’s S. C. 371; sec 13 Ohio, 79,
    
   Eanney, J.

Did the court of common pleas err in refusing to order the execution in this case to be set aside, and satisfaction to be entered on the judgment ? It can not be denied that'the plaintiff’s attorneys did agree to receive in full satisfaction of the judgments the sum of ¡1656.50 ; that it was paid in specie, in pursuance of the agreement, they giving a receipt specifying that it was in full payment and discharge of said judgment then remaining of record in Butler county. These acts of the attorneys were fully ratified and confirmed by the principal, the plaintiff in the judgment, and are-just as effectual as though done by him. This was done, it is true, with the mental reservation on the part of both client and attorneys, that it would not effectually bar a recovery for the balance of the judgment: first, because the release was not under seal; and, second, because the payment was not as large as the amount of the judgment. B.ut it is not pretended that any such intimation was given to Harper. On the contrary, it is not denied that he raised the money and paid it with the full confidence that it relieved him entirely from the judgment, and that the transaction was really what it seemed. Harper was at the time residing in the State of Arkansas, and was entirely insolvent. The question now presented is, whether the plaintiff can, by means of this subterfuge, obtain tbe payment of a part of his debt, and for the technical reasons above stated, in the face of his positive agreement, refuse to enter satisfaction upon his judgment.

It was very early settled as a rule of the common law, that the payment of less than the sum due upon a liquidated demand, although agreed to be received in full satisfaction, could not be insisted upon as such, because there was no valuable consideration to uphold the agreement to relinquish the balance. But if the party to whom the money was coming executed a release, under seal, for the same debt, he was ^effectually barred, although he should have received nothing upon it. The rule and the reason were purely technical, and often fostered bad faith. The history of judicial decisions upon the subject has shown a constant effort to escape from its absurdity and injustice. Hence, w.e find the Supreme Court of the State of New York, in the case of Kellogg v. Richards, 14 Wend. 116, holding the following language in respect to it:

“ The rule that the. payment of a less sum of money, though agreed to be received in full satisfaction of a debt exceeding that amount, shall not be so considered in contemplation of law, is technical, and not very well supported by reason. Courts, therefore, have departed from it on slight distinctions.”

The Supreme Court of Massachusetts; in the case of Brooks v. White, 2 Met. 285, speak of it in no less explicit terms. They say:

“ This rule which may obviously be urged in violation of good faith, is not to be extended beyond its precise import; and whenever the technical reason for its application does not exist, the rule itself is not to be applied. Hence judges have been disposed to take out of its application all those cases where there was any new consideration, or any collateral benefit received by the payee which might raise a technical legal consideration, although it was quite apparent that such consideration was far less than the amount of the sum due.”

A moment’s attention to the cases taken out of the rule, will show that there is nothing of principle left in the rule itself. One of the earliest cases is Reynolds v. Pinhowe, Cro. Eliz. 429, where, after judgment for £5, the plaintiff on receipt of £4, assumed to acknowledge satisfaction of the judgment before a given day; and this was held good upon the ground that it was a benefit to the plaintiff to receive the money without suit or charge, and to prevent a writ of error, by which the defendant might have avoided the whole judgment. The authority of this case has been questioned, but 1 find it relied on in the very recent case of Sibner v. Tripp, 15 Mee. & *Welsb. 22, and conclude that it is regarded as good law in England now.

In Pinnell’s case, 5 Co. 117, it was held that the payment of a- less sum before the debt foil duo, would discharge it, and this reason is given : “ Peradventure parcel of the sum before the day it fell due, would be more beneficial to him than the whole at the day; and the value of the satisfaction is not material.” Another case tallen out, is thus alluded to in Co. Lit., 212, b : “If the obligor pay a lesser sum, either before the day, or at another place than is limited by the condition, and the obligee receiveth it, this is a good satisfaction.”

In Boyd v. Hitchcock, 20 Johns. 76, the debtor gave a note to the creditor for a less sum than was due, with security, and this was held a valid discharge, for the reason, as the court say, “here was a beneficial interest acquired, and a valuable consideration received by the plaintiffs, when they agreed to accept less than the whole demand.”

So in Kellogg v. Richards, before cited, it was held that the receipt of the note of a third person for less than the amount due, would be a good accord and satisfaction ; and the same thing was held in the case of Brooks v. White, before cited.

Again, it is well settled by a great number of authorities, that the receipt in satisfaction of any other article than money, will be effectual, no matter how small the value as compared to the debt. Blynn v. Chester, 5 Day, 360.

As stated by Alderson, B., in Sibner v. Tripp, 15 Mee. & Welsb. 37 : “ If you substitute for a sum of money a piece of paper, or a stick of sealing wax, it is different, and the bargain may be carried out in its full integrity. A man may give in satisfaction of a debt of £100, a horse of the value of five pounds, but not five pounds.” In this case it was held that the acceptance of the negotiable security of the debtor himself, by the creditor, was in law a satisfaction of a debt of greater amount. This decision was made as late as 1846, and the learned judge from whom I have quoted, ventures to intimate in respect to the whole subject, that “ the courts might very *well have held the contrary, and have left the matter to the agreement of the parties.” We see, then, that the payment of a less sum than is duo, the day before a debt falls due, will discharge it—payment at another place than is stipulated will .do so — the delivery of a collateral article of any value will do so—the acceptance of the debtor’s note with security, the note of a third person, or even the negotiable note of the debtor himself, will do so ; and yet the payment of as much money in hand as is called for by such note, will have no such effect!—although it is demonstrable that the Utmost the creditor can get from such note can not exceed the amount that he gets in hand in the other case, without trouble, delay, or expense. It may seem to some persons, not having a great veneration for those institutions of antiquity, for which no reason can bo given, that a rule so effectually undermined, and having neither rhyme nor reason to support it, ought to be at once overruled and the whole matter placed upon the footing of reason and common sense. Especially, as the exigencies of modern commerce frequently compel the most deserving men, with the aid of friends, to compromise their debts for less than the amount due—an operation mutually beneficial to both debtor and creditor, as the creditor gets a part, where otherwise he would lose the whole, and the debtor is left free to commence again with tlie hope of better success. These considerations will necessarily arise whenever it becomes necessary to decide the general question. In this case we aspire to nothing higher than to follow in the footsteps of the sages of the law, and hold this one of the cases “taken out” of the rule. This money was payable at the clerk’s office in Butler county, or to the plaintiff, residing in the same county. It was paid in Arkansas-It is true it might be said that this was not so beneficial to the plaintiff, as though it had been paid to him in Butler county. This may be, but still it does not prevent it from being at a different place, which is all the rule seems to require. Again, Harper was bound to pay the judgment, but he was not bound to pay Graham’s lawyers. He did pay them $100 in *the settlement that was made, and this separately from the amount paid upon the judgment. Graham so treated it himself, for he indorsed only $550 upon the judgment, instead of $656.50, the amount actually paid by Harper. Harper thus discharged a debt due from Graham to his attorneys, and this was a “ collateral benefit received by Graham, which raises a technical legal consideration” for the promise of Graham to discharge this judgment; although both sums paid fall far short of the amount of the judgment. But this circumstance, it is agreed in all the cases, is not at all material. I am aware that this is exceedingly technical and unsatisfactory reasoning, but its justification is found in the fact that the plaintiff seeks to escape from his solemn engagement, by which he has obtained money from the defendant by the aid of a technicality; to prevent the consummation of such a. fraud, he is met with technicalities nearly as absurd as that upon which he insists. The reason and common sense (and I trust I may soon say the law) of the whole matter is this: The plaintiff had a judgment against an insolvent man. He had a right to dispose of it to whom he pleased and for what he pleased, as well as he had any other article of property he owned. He did dispose of it to the defendant in the judgment, .and received his pay in full according to agreement. By this disposition, in the absence of fraud or unfairness, he ought in honor, justice, and law, to be bound, and we think under the circumstances of this case, in any view of it, either technical or substantial, he is bound.

It follows that the order of the court below is erroneous, and the same is reversed, and the cause remanded with instructions to enter satisfaction upon the judgment.  