Same - Consideration For Release Of Residue

The rule that part payment of a debt does not discharge the debtor does not apply where the creditor, in addition to the part payment, receives something else which the law regards of value, or, in other "words, where, in the thing done or given, he receives something different in kind from that which he is entitled to demand;32 and if the difference is real, so that something of value is superadded to the part payment, the fact that the difference or the value superadded is slight will make no difference, for, as we have seen, the courts will not determine the adequacy of the consideration. If a man sells and becomes bound to deliver to another two particular horses, delivering one of them will not sustain a promise by the buyer not to require delivery of the other; but it would be otherwise if the buyer agreed to receive some other particular horse or cow in discharge of the contract, though it might be of comparatively little value. A money debt may be discharged by the giving of a negotiable instrument for a less sum than due, or, as said in an old English case, "the gift of a horse, hawk, or robe, etc., in satisfaction, is good; for it shall be intended that a horse, hawk, or robe, etc., might be more beneficial to the plaintiff than money, in respect of some circumstance, or otherwise the plaintiff would not have accepted of it in satisfaction."33

If the debtor gives, and the creditor receives, in full satisfaction of the debt, the note of a third person for a smaller sum than the amount of the debt, there is a sufficient consideration for his promise to forego the residue;34 and so it is where the smaller sum agreed to be taken is guarantied, or a note therefor is indorsed, by a third person;36 or where the smaller sum is paid before the debt is due, or at a different place than required by the contract; 36 or where a note secured by a mortgage is given for the smaller sum.37

32 JAFFRAY v. DAVIS, 124 N. T. 164, 26 N. E. 351, 11 L. R. A. 710, Throckmorton Cas. Contracts, 120; Day v. Gardner, 42 N. J. Eq. 199, 7 Atl. 363; Stacy v. Cook, 62 Kan. 50, 61 Pac. 399. See 'Accord and Satisfaction," Dec. Dig. (Key-No.) § 8; Cent. Dig. §§ 60-65.

33 Pinnel's Case, 5 Coke, 117a. And see Hasted v. Dodge (Iowa) 35 N. W. 462. See "Accord and Satisfaction," Dec. Dig. (Key-No.) § 8; Cent. Dig. §§ 60-65.

34 Brooks v. White, 2 Mete. (Mass.) 2S3, 37 Am. Dec. 95; Kellogg v. Richards, 14 Wend. (N. Y.) 116; Sanders v. Bank, 13 Ala. 353; Hardesty v. Graham (Ky.) 3 S. W. 909. Check of third person. Guild v. Butler, 127 Mass. 386. See "Accord and Satisfaction," Dec. Dig. (Key-No.) §§ 9, 11; Cent. Dig. §§ 88-91, 75-82.

35 Steinman v. Magnus, 11 East, 390; Singleton v. Thomas, 73 Ala. 205; Jenness v. Lane, 26 Me. 475; Maddux v. Bevan, 39 Md., at page 499; Boyd v. Hitchcock, 20 Johns. (N. Y.) 76, 11 Am. Dec 247; Varney v. Conery, 77 Mo. 527, 1 Atl. 683; Mason v. Campbell, 27 Minn. 54, 6 N. W. 405. See "Accord and Satisfaction," Dec. Dig. (Key-No.) §§ 9, 11; Cent. Dig. §§ 88-91.