Chapman v. Dennison Paper Manufacturing Co. , 77 Me. 205 ( 1885 )

Virgin, J.

The plaintiff’s agreement of November 7, 1879, cannot bar this action on the ground of accord and satisfaction, for it has never been fully executed. Heathcote v. Crookshank, 2 Term, 24; Bragg v. Pierce, 53 Maine, 65 ; Miller v. Hatch, 72 Maine, 481.

Assuming (without deciding) that it was made upon sufficient consideration; that a composition had been entered into by all of the defendant’s creditors save two; and that the defendant, in the absence of any stipulation in the composition agreement requiring the assent of all, might lawfully settle with those who did not sign it on such terms as he and they might agree, without thereby releasing those who did sign, then the agreement alone which the plaintiff signed, in the absence of any reference therein to the general composition agreement, is the only one that can affect him. We must look, therefore, at the terms of his agreement in order to ascertain what is to operate as a satisfaction or discharge of his original debt. McKenzie v. McKenzie, 16 Ves. 372.

There is a familiar class of cases wherein by the agreement a debtor’s promise is received by his creditors in satisfaction of his debts; and there is another class where the performance and not the promise is intended to operate as satisfaction. 1 Sm. L. Cas. (6 Am. ed) 554; 2 Sm. L. Cas. 24; Evans v. Powis, 1 Exch. 599, 606; Richardson v. Cooper, 25 Maine, 450, 452. In the former class, the new promise is given as a substitution for or satisfaction of the debt. Good v. Cheeseman, 2 B. & Ad. 328. Where the composition deed contained an absolute and immediate release of the debtor, with a covenant on his part to pay the composition money in instalments, without any proviso declaring it void unless paid, the non-payment was held not to remit the creditor to their original debts for the reason that they were discharged, and that the creditors ’ remedy was upon the covenant. Lay v. Mottram, 19 C. B. (N. S.) 479, 484. But if, instead of a release, the composition agreement contain a mere stipulation that the creditors will accept a certain sum, or percentage of their respective debts in full satisfaction thereof, the debtor must punctually pay to entitle him to a discharge. Cranley v. Hillary, 2 M. & S. 120. For the creditor, not being obliged to enter into any composition agreement, has the sole right of modifying his first contract and of prescribing the conditions of its discharge ; and if the debtor fail to pay, the condition to accept a paid is broken, the new contract is thereby forfeited and is no bar to the original cause of action. Sewall v. Musson, 1 Vern. 210; Clarke v. White, 12 Pet. 178, 191. Still, while such a composition agreement is in force, and before any infraction thereof on the part of the debtor, the remedy on the original debts being suspended thereby, they cannot be the subject of an action. Cranley v. Hillary, supra; Chemical N. Bank v. Kohner, 85 N. Y. 189.

The plaintiff’s agreement comes within this rule; and the question arises, ivas it in force when the defendant first moved to perform on his part on November 19, 1883. By its terms the plaintiff agreed to accept twenty-five per cent of the amount due on the notes on July 1, 1879, to be paid in cash "whenever the question” of their ownership "is decided.”

A composition agreement is an act of favor and indulgence on the part of creditors. But when it is signed and delivered, favor ceases, and the debtor, in the absence of any waiver by the creditors, is remanded again to the law, which requires of him a strict compliance if he would avail himself of its advantages, visiting upon him, for his default, no harsher penalty than a. renewed liability to pay the debt which he already owes. When; money is to be paid'by him within a specified time, the debtor must pay or tender it, at the time stipulated. Evans v. Powis, supra: Fessard v. Mugnier, 18 C. B. (N. S.) 286; Cranly v. Hillary, supra. And if no definite time is fixed, the law imposes upon him the obligation to pay within a reasonable time. Attwood v. Clark, 2 Maine, 249; Saunders v. Curtis, 75 Maine, 493, 495; Wilder v. Sprague, 50 Maine, 354; Bowen v. Holly, 38 Vt. 574. And whether this question is one of law or fact, we need not discuss it here, as the case comes before us; on report, and the court is to decide it on so much of the evidence’ as is legally admissible.

By the terms of the agreement, the defendant was to pay in, cash, "whenever the ownership of the notes is decided.” The most favorable construction which the defendant can ask, is that he was thereby required to pay within a reasonable time after' that decision was made known to him.

What is a reasonable time in a given case, depends upon a consideration of all of its circumstances. This court has declared; that a reasonable time is such time as is necessary conveniently to do what the contract requires should be done. Howe v. Huntington, 15 Maine, 350 ; Saunders v. Curtis, 75 Maine, 493.

In this case, nothing but money was to be paid. The defendant had obtained a like agreement with the other contingent, owner of the notes, so that the money was to be ready at all; hazards. The parties resided within forty miles of each other,, and there was railroad communication twice daily between their places of business. The defendant’s treasurer was in Portland! ( plaintiff’s place of business ) very often during the months of' July, August and September, 1883. He wTas notified July 7, 1883, by letter, that the court had settled the ownership of the notes in the plaintiff, that they were then in his possession, and that he was ready to settle, as by his agreement. On July 14,, the plaintiff wras notified by letter that the defendant would meet him in Portland the ensuing week and " arrange the matter. ” On July 23, the plaintiff notified the defendant of the "amount which he made due on the notes. ” The plaintiff waited until September 8, and then sued out this action, returnable on first Tuesday in November, and no offer of payment was made, or excuse for the delay was offered, until November 19. "This long delay, which the defendant has not seen fit to explain, we think is unreasonable. ” Saunders v. Curtis, supra; Kingsley v. Wallis, 14 Maine, 57.

Judgment for the plaintiff for the amount of the notes.

Peters, C. J., Walton, Libbey, Emery and Haskell, JJ., 'concurred.