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Discharge on Part Payment.

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§ 1410. Even after the principal amount of a note has been paid, an action may be maintained on a second note given for interest accrued before such payment; or on an agreement to pay such interest, made at the time the principal was paid.177

But payment of part of the amount due is not a sufficient consideration for a discharge of the entire amount, 178 and will not bar a recovery of the balance, 179 although it has been received in satisfaction of the whole, and the note has been surrendered.180 So, one of several joint makers will not be discharged by payment of his proportionate share of the entire amount.1 In like manner, part payment of the amount due is not a sufficient consideration for an agreement on the holder's part to extend the time of payment.182

The rule that part payment is not sufficient consideration for a complete discharge is confined to payment in cash, and does not apply to satisfaction made by note or bill; and the tendency of the courts seems to be in favor of relaxing the rule as unreasonable, and not in ac

181

176 Robbins v. Cheek, 32 Ind. 328. But he could not sue, on the original note, for the interest after the principal was paid, Comparet v. Ewing, 8 Blackf. (Ind.) 328; Moore v. Fuller, 47 N. C. 205; or after payment of a judgment which did not include the interest, Couch v. Waring, 9 Conn. 261. And a holder who has received dividends from the insolvent estates of the maker and indorser, equal to the full amount of the principal and interest accrued up to the date of filing proof of his claim, cannot receive further dividends to cover subsequently accruing interest, until the claims of other creditors are also paid up to the full extent proved. Blake v. Ames, & Allen (Mass.) 318.

177 The note being surrendered at the time. Hall v. King, 2 Colo. 711. 178 Byles, Bills, 232; Fitch v. Sutton, 5 East, 230; Lathrop v. Page, 129 Mass. 19; Price v. Cannon, 3 Mo. 453.

179 Fenwick v. Phillips, 3 Metc. (Ky.) 87. 180 Bliss v. Shwarts, 65 N. Y. 444.

181 Missouri Loan Bank v. Garner, 1 Mo. App. 200. So, the receipt on a note, from one of several guarantors, of "his part

in full for his part," will not discharge him as to the balance. Carrier v. Jones, 68 N. C. 127; Griffith v. Grogan, 12 Cal. 317.

182 Price v. Cannon, 3 Mo. 453. And, conversely, money paid for an extension cannot be afterwards pleaded by the maker as a part payment. Walker v. Villavaso, 18 La. Ann. 715.

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cordance with actual commercial usage or convenience.

Thus, part payment by a third party, received expressly in full satisfaction, is available as such.1 So, it has been held that the payment of principal, received in full satisfaction of principal and interest due, will discharge the claim for interest. 185 So, where the holder has accepted payment of the face of the bill, without the costs, after suit brought, he cannot bring a further action for nominal damages or costs.

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Part Payment by Joint Maker-Indorser-Drawer.

§ 1411. One joint maker may pay part of the note, and even be discharged absolutely by the payee, without effecting the discharge of his co-makers. 187 And it is expressly provided by statute in Virginia that a creditor may release a joint debtor without discharging his coobligors; but he must in such case deduct his full share from the balance claimed as due from the others, or, if the party paying was a surety, the amount actually paid by him must be deducted.18 8

If part payment is made by the indorser of a note, and discharge obtained by him as a bankrupt, the holder may still prove the whole amount of the note as a debt due from the bankrupt maker, 189

holding any excess that may be recovered over and above the balance due to him as trustee for such indorser. But after receiving such dividend from the indorser's estate he can only prove against the bankrupt drawer for the balance remaining due.191 So, if the divi

or ac

ceptor, 190

183 2 Pars. Notes & B. 217.

184 Byles, Bills, 232; Chit. Bills, 442; 2 Pars. Notes & B. 217; Welby v. Drake, 1 Car. & P. 557.

i85 Byles, Bills, 232; 2 Pars. Notes & B. 218; Beaumont v. Greathead, 3 Dowl. & L. 631, 2 C. B. 494.

186 Thame v. Boast, 12 Q. B. 808.

187 Ruggles v. Patten, 8 Mass. 480. So, in case of judgment by cognovit against one joint maker, and levy of part under fi. fa. against him. · Ayrey v. Davenport, 2 Bos. & P. (N. R.) 474.

18* VIRGINIA (Code, c. 135, $$ 2856, 2857).

189 In re Ellerhorst, 5 N. B. R. 144, Fed. Cas. No. 4,381; In re Souther, 9 V. B. R. 302, Fed. Cas. No. 13,181; Ex parte Talcott, 2 Low. 320, Fed. Cas. No. 13,184.

190 Ex parte De Tastet, 1 Rose, 10. 191 Cooper v. Pepys, 1 Atk. 106.

dend is received from the drawer's estate, he can only make proof against the acceptor's estate for the balance due. 102

Part Payment by Acceptor-Maker.

195

§ 1412. If part payment is made by the acceptor of a bill, it will not discharge the drawer, but will inure to his benefit as a discharge pro tanto; 183 and proof can be made against the drawer's estate for the balance.194 But after part payment by an accommodation acceptor, the holder may still prove for the entire amount against the drawer accommodated, and the acceptor (being in fact a surety) may apply to the court to have all excess above the balance due the holder paid into court for his benefit.1

On the other hand, where a bill is proved by the holder against acceptor and indorser, and dividends are received from both estates on the full amount of the bill, and the balance of the dividend due to the holder from the indorser's estate, after paying the holder in full, is paid to the acceptor (who had been guarantied by the indorser) as a dividend on the amount paid by his estate to the holder, no further proof can be made in favor of the acceptor's estate against the indorser's estate on the ground of the double liability incurred by the indorser. 196

The holder of a note may prove for its full amount against the bank

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182 Where the bill was accepted for the accommodation of the drawer, Ex parte Tayler, 1 De Gex & J. 302; In re Oriental Commercial Bank, L. R. 6 Eq. 582, although the claim against the acceptor had been sworn to, and informally entered, before the dividend from the drawer was received or declared, Ex parte Royal Bank of Scotland, 2 Rose, 197.

193 Kennedy v. Motte, 3 McCord (S. C.) 13. 18+ Ex parte Ryswicke, 2 P. Wms. 89; Sohier v. Loring, 6 Cush. (Mass.) 537; unless the acceptor was without funds and paid the bill for the drawer's accommodation, Ex parte Ryswicke, supra. But he might have proved his entire claim against acceptor, drawer, and indorser before receiving a dividend from the former. Sohier v. Loring, supra.

195 Downing v. Bank, 2 Dill. 136, Fed. Cas. No. 4,046. In this case, the acceptor's payment was made by his promissory note, and the drawer became bankrupt before it matured.

196 In re Oriental Commercial Bank, 7 Ch. App. 99, affirming L. R. 12 Eq.

501.

estate. 198

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rupt estate of both maker and indorser,197 and will be entitled to a dividend on the full amount proved against the indorser's estate, after receiving a dividend of one-half the entire amount from the maker's

And this is true, although he could only have proved his claim for the balance after such dividend had been received, or even after it had been declared.20

The effect of part payment as a bar to the statute of limitations will be considered in a later part of this work. Its effect as a waiver of demand or notice of dishonor has been already considered.

Foreign Statutes as to Part Payment.

§ 1413. Many foreign statutes require the holder to receive any partial payment that is tendered.201 This is the rule in Germany, although the bill may have been accepted for the entire amount of its

But it is not required in Hungary, where the payment offered is less than one-half of the bill.203 By the Spanish Code the

face.202

197 Miller's Estate, 82 Pa. St. 113; Blake v. Ames, 8 Allen (Mass! 318. National Mount Wollaston Bank v. Porter, 122 Mass. 308. But in Illinois he must collect what he can from the maker before suit against the indorser. White v. Clayes, 32 Ill. 325.

198 Notwithstanding a full dividend already paid by the indorser's estate to the payee of the note after its transfer to the plaintiff, and in ignorance of such transfer. National Mount Wollaston Bank v. Porter, supra. But see Benj. Chalm. Dig. art. 234.

199 Ex parte Lefebvre, 2 P. Wms. 407. So, after a voluntary part payment by the maker. Ex parte Harris, 2 Low. 568, Fed. Cas. No. 6,109. In that case he may prove for the whole balance against several bankrupt indorsers, but cannot receive, in all, more than his entire claim. In re Howard, 4 N. B. R. 571, Fed. Cas. No. 6,750.

200 Ex parte Leers, 6 Ves. 644.

201 BELGIUM (Code Nap.); DENMARK (Exch. Law, $ 58); FRANCE (Code Com. art. 156); GREECE (Code Nap.); GUATEMALA (Ord. Bilbao, $ 30); HAYTI (Code Nap. $ 153); HOLLAND (Exch. Law, art. 168); HONDURAS (same as "Guatemala"); ITALY (Code Com. art. 242); PORTUGAL (Code Com. arts. 389, 390); RUSSIA (Exch. Law, art. 612); SAN DOMINGO (Code Nap.); SWEDEN (Exch. Law, $ 41); TURKEY (Code Nap. § 113); URUGUAY (Code Com. art. 888); VENEZUELA (Code Com. art. 59).

202 AUSTRIA (Exch. Law, art. 38); GERMANY (Exch. Law, art. 38); SWITZERLAND (Ob. R. 757). 203 HUNGARY (Exch. Law, $ 116).

holder need not receive any partial payment.20 4 In nearly all coun-
tries, however, a part payment, received from the acceptor or maker,
inures to the benefit of the drawer and indorsers.205

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$ 1414. By the law merchant, the person making payment cannot demand a receipt from the person receiving it.20 And it is not a sufficient tender of payment if the payor insists on a receipt in full of all demands.207

So, one who tenders payment of a lost note cannot insist on more than a receipt for the payment and a cancellation of the mortgage securing it.208

But one who pays a bill may demand a receipt by the statute now in force in Great Britain.209 And in some foreign countries the holder is required to give a receipt on the bill it self acknowledging payment.210

204 BOLIVIA (Code Com. art. 403); CHILI (Code Com. art. 713); CO-
LOMBIA (Code Com. art. 456); COSTA RICA (Code Com. art. 449); ECUA-
DOR (Code Com., as in "Spain"); MEXICO (Code Com. art. 391); NICAR-
AGUA (Code Com. art. 278); PERU (Code Com. art. 457); SALVADOR (Code
Com. art. 455); SPAIN (Code Com. art. 502).

205 ARGENTINE REPUBLIC (Code Com. art. 871); BELGIUM (Code
Nap.); BOLIVIA (Code Com. art. 395); COLOMBIA (Code Com. art. 464);
COSTA RICA (Code Com. art. 457); ECUADOR (Code Com., as in "Spain");
FRANCE (Code Com. art. 156); GREECE (Code Nap.); HAYTI (Code Nap.);
ITALY (Code Com. art. 242); MEXICO (Code Com. art. 402); PORTUGAL
(Code Com. art. 389); SALVADOR (Code Com. art. 463); SAN DOMINGO
(Code Nap.); SPAIN (Code Com. art. 510); TURKEY (Code Nap.); URU-
GUAY (Code Com, art. 888).

206 Edw. Bills & N. & 784; Story, Prom. Notes, $ 452. But such demand is
immaterial, if not objected to at the time. Cole v. Blake, Peake, 179. In
like manner, it is not necessary that the payee should indorse the note on
receiving payment. Osborn v. Gheen, 5 Mackey (D. C.) 189.

207 Thayer v. Brackett, 12 Mass. 450.
308 Holton v. Brown, 18 Vt. 224.
209 43 Geo. III. c. 126, $ 5. Although this was formerly held not to be the
rule. Chit. Bills, 477; Cole v. Blake, Peake, 179; Green v. Croft, 2 H. Bl.
30. And he cannot demand a stamped receipt unless he can produce it for
the other party to sign. Laing v. Meader, 1 Car. & P. 257.

210 AUSTRIA (Exch. Law, art. 39); CHILI (Code Com. art. 721); GER-
MANY (Exch. Law, art. 39); HOLLAND (Exch. Law, art. 167); HUNGARY
(Esch. Law, $ 119); PORTUGAL (Code Com. art. 388); SWEDEN (Exch.
Law, 40).
RAND.C.P.-129

(2019)

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