49 Carlton v. Western, etc., R. Co., 81 Ga. 631, 7 S. E. 623.
50 Walston v. F. D. Calkins Co., 119 Iowa, 150, 93 N. W. 49. Otherwise by statute in Maine, Fuller v. Smith, 107 Me. 161, 77 Atl. 706.
51 Gracey p. St. Louis, 213 Mo. 384, 111. W. 1159.
52 Eastman v. Miller, 113 Iowa, 404, 85 N. W. 635; Ness v. Minnesota & Colorado Co., 87 Minn. 413, 92 N. W. 333; Manse v. Hossington, 205 N. Y. 33, 98 N. E. 203. Cf. with these decisions infra, Sec. 129.
53 Watts v. Parks, 25 Ky. Law Rep. 1908, 78 S. W. 1125.
54Dixon v. Adams, Croke Elix. 538.
There has been considerable difference of opinion as to whether the payment of a debt constituted good consideration when the debtor was insolvent. There seems no proper ground for making such a distinction. An insolvent debtor is bound to pay bis debts, as much as a solvent one, in the absence of bankruptcy legislation; and under the existing national bankruptcy law a bargain with an insolvent debtor, involving payment of a greater part of a debt than other creditors would receive would be a violation of the bankruptcy law in regard to preferences and would be voidable if the debtor's insolvency was known. Even if the transaction is not illegal, the debtor certainly is not going beyond his legal duty in paying the debt. This view has been taken in some decisions.58 But the contrary view also has been taken, on the ground that by bankruptcy or otherwise the debtor might legally evade full payment.59 No doubt unless its preferential character makes the payment illegal, a payment of part of a debt accompanied by an agreemeat by the debtor to refrain from voluntary bankruptcy must be regarded as a sufficient consideration for the creditor's promise,60 but the mere fact that the creditor fears that the debtor will go into bankruptcy, and that the debtor contemplates bankruptcy proceedings, does not prove that the creditor requested the debtor to refrain from such proceedings. If the creditor gets the part payment, he is getting all he requests, and by this payment of part of the debt the creditor receives only a benefit in fact, and the debtor suffers only a detriment in fact in return for the agreement rather than detriment or benefit in law. In many cases of part payment of a liquidated debt as full satisfaction there is doubtless a detriment in fact to the debtor and a benefit in fact to the creditor, even though bankruptcy is not imminent. It seems difficult, where the debtor is insolvent, as much as where he is not, to evade the plain fact that the debtor is merely doing what he is under a legal obligation to do. The fact that if he obtains a discharge in bankruptcy he will escape from the obligation, does not make him any less bound until he gets such a discharge. Nor does it matter that a debtor refrains from going into bankruptcy, relying upon the compromise with his creditor, if the creditor did not request him to refrain.61
55Berdineau v. Shock, 21 Col. App. 198, 121 Pac. 146.
56 Elmore v. Snow, 102 Ark. 592, 146 S W. 476.
57Lynn v. Bruce, 2 H. Bl. 317; Ford p. Gamer, 16 Ind. 298; Reynolds v. Nugent, 26 Ind. 328, 329, 330; Crowder v. Reed, 80 Ind. 1, 13; Harris v. Cassady, 107 Ind. 168, 168, 8 N. E. 29; Cuthbertson v. First Nat. Bank, 158 Ia. 144, 138 N. W. 1090; Schuler v. Myton, 48 Kans. 282, 288, 29 Pac. 163; Eblin v. Miller, 78Ky. 371; Jennes v. Lane, 26 Me. 476; Vander-bilt v. Schreyer, 91 N. Y. 392, 401; Seybolt v. New York, L. E. & W. R., 95 N. Y. 662, 676, 47 Am. Rep. 75; Bryan v. Foy, 69'N. C. 45; Citizens' Nat. Bank v. Marks, 34 Pa. Super. 310, 314; Rose v. Daniels, 8 R. I. 381.
See also Jones v. Waite, 5 Bing. (N. C.) 341, 351, 356, 358-359; Jones v. Coffey, 109 N. C. 515, 14 S. E. 84; Pruden p. Railroad Co., 121 N. C. 509, 28 S. E. 349; Ramsey p. Browder, 136 N. C. 251, 48 S. E. 651.
58 Pearson v. Thomason, 15 Ala. 700, 50 Am. Dec. 159; Warren v. Skinner, 20 Conn. 559; Molyneaus v. Collier, 13 Ga. 406, 17 Ga. 46, 30 Ga. 731; Beaver v. Pulp, 136 Ind. 595, 36 N, E. 418.
59Wescott v. Waller, 47 Ala. 492, 498; Engbretson v. Seiberling, 122 Iowa, 522, 98 N. W. 319, 64 L. R. A. 75, 101 Am. St. Rep. 279; Seegmiller p. Kelley (Iowa), 99 N. W. 1131; Shelton p. Jackson, 20 Tex. Civ. App. 443, 49 S. W. 415. See also Rice v. London Mortgage Co., 70 Minn. 77, 72 N. W. 826.
Sec. 121. Payment or security differing in time, medium, place, from the debtor's legal obligation is valid consideration. If a debtor does something more or different in character from that which he was legally bound to do, this is sufficient consideration for a promise. Accordingly if a debtor pays his debt or part of it before it is due,62 or in a medium of pay-
60 Hanson v. McCann, 20 Col. App. 43, 76 Pac. 983; Hinckley v. Arey, 27 Me. 362; Dawson v. Beall, 68 Ga. 328; Melroy v. Kemmerer, 218 Pa. 381, 67 Atl. 699; Rotan Grocery Co. v. Noble, 36 Tex. Civ. App. 226, 81 S. W. 686; Herman v. Schiesinger, 114 Wise 382, 90 N. W. 460, 91 Am. St. Rep. 922.
61 See infra, Sec. 139.
62 Pinnel's Case, 5 Coke, 118; Phillips v. Preston, 5 How. (U. S.) 278, 12
L. Ed. 152; Rose v. Hall, 26 Conn. 392, 68 Am. Dec. 402; Spann v. Baltzell, 1 Fla. 301, 46 Am. Dec. 346; Hutton v. Stoddart, 83 Ind. 539; Boyd v. Moats, 75 Ia.. 151, 39 N. W. 237; Bice v. Silver, 170 Ia. 255, 152 N. W. 498; Ricketts v. Hall, 2 Bush, 249; Chicora Fertilizer Co. v. Dunan, 91 Md 144, 46 Atl. 347, 60 L. R. A. 401; Singer Sewing Machine Co. v. Lee, 105 Md. 663, 66 Atl. 628; Bowker v. Childs, 3 Allen, 434; Schweimeat different from that for which he was bound,63 or at a different place,64 or to someone other than the creditor,65 the consideration is sufficient to support a promise by the creditor. So if the debtor gives security, a promise in consideration thereof to release part of the debt is sufficiently supported.66 The application to the debt of property exempt from execution also is going beyond the legal obligation of the debtor, and therefore is valid consideration.67 So indeed is the giving of any security to which the creditor der v.Lang,29Minn.254,13N.W.33, 43 Am. Rep. 202; Reed v. McGregor, 62 Minn. 91, 64 N. W. 88; Dalrymple v. Craig, 149 Mo. 345, 50 S. W. 884; Jones v. Perkins, 29 Miss. 139, 64 Am. Dec 136; Scofield v. Clark, 48 Neb. 711, 67 N. W. 754; Grant v. Hughes, 96 N. C. 177, 2 S. E. 339; Thurber v. Smith, 25 R. I. 60, 54 Atl. 790; Kir-choff v. Voss, 67 Tex. 320, 3 S. W. 548; Russell v. Stevenson, 34 Wash. 166, 75 Pac. 627. But payment upon a note after maturity, but before the last day of grace is not valid consideration. MeKsmy v. McNabb, 97 Tenn. 236, 36 8. W. 1091. See also Harms v. Fidelity & Casualty Co., 172 Mo. App. 241, 157 3. W. 1046; Bandman v. Finn, 185 N. Y. 508, 78 N. E. 175, 12 L. R. A. (N. S.) 1134. But an agreement where a contract called for daily payments, that payments should be made at the end of each week was held invalid in Wilt v. Hammond, 179 Mo. App. 406, 165 S. W. 362.