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Bates v. N. Y. Ins. Co.

been given to him by the company, that they had any demand against Butler, who had now become insolvent, and the plaintiff had no mode of indemnifying himself, for the money paid Butler, or for the instalments which he had paid, but by some means or other procuring a transfer of the stock, which he had purchased, which the defendants refused to make, unless he paid them the 465 dollars, which was not then due from Butler to them. The purchase of the stock had been made by the plaintiff, and the business transacted according to the usage and practice before adopted by the defendants, and he had reasonable grounds to

believe, when he made the purchase, that the trans[*241] fer would *be made to him, agreeably to the former practice of the company, and which they in equity and good conscience were bound to do. The money being inequitably demanded of him, he must be presumed to have paid it, relying on his legal remedy to recover it back. In the case of Astly v. Reynolds, (2 Str. 913,) money paid under circumstances less coercive than in the present case was recovered back in this form of action. In that case the plaintiff had pawned some plate to the defendant, and, when he came to redeem it, the defendant refused to deliver it up, unless he was paid an exorbitant premium, which was paid, and an action brought to recover the money back. The court, in giving judgment, said that it was a payment by compulsion; the plaintiff might have such an immediate want of his goods that an action of trover would not do his business; that where the rule volenti non fit injuria is applied, it must be where the party had his freedom of exercising his will. In the case of Irving v. Wilson, (4 Term Rep. 485,) and also of Hunt, Executor, &c. v. Stokes, (4 Term Rep. 561,) the same principles are fully recognized and adopted.

It is contended, on the part of the defendants, that this was a voluntary payment, and, therefore, not recoverable back; and to establish this, two cases have been cited, Brown v. M'Kinnaly, (1 Esp. Cases, 279,) and Bizev. Dickason, (1 Term

Bates v. N. Y. Ins. Co.

Rep. 285.) But on examination, those cases do not compare with the present. The former case appears to have been decided on the ground that the money for which the action was brought had been paid pending a former suit, and that the plaintiff, Brown, might have interposed, as a defence in that action, the same matter on which he then relied to recover; and that to allow him to sustain his action would be to try every such matter twice. In the latter case, the money for which the action was brought, in equity and conscience, belonged to the defendant; and although the plaintiff could not in law have been compelled to pay it;

yet *after he had voluntarily paid it, the court on [*242] that ground refused to sustain an action to recover

it back. On the whole, we are of opinion that the 465 dollars could not, under all circumstances, be considered a voluntary payment, but as made, in some measure, by compulsion, an undue advantage having been taken of the plaintiff's situation, and that he ought to recover it back.

The second question with respect to the dividends appropriated by the defendants, involves points of greater doubt and difficulty. From the case it appears, that the assignment from Butler to the plaintiff was made on the 22d of July, 1796, but it does not appear that notice of it was given to the defendants, until the 20th of January, 1797; and the three dividends were made after that period. Had the money been actually paid over to Norman Butler after the defendants received notice of the assignment, we should be inclined to protect the rights of the assignee, and consider it a payment wrongfully made, and that the plaintiff ought to recover the amount. But in the present case, the defendants had, at the time of receiving the notice, an equitable lien on this money; all the three notes given by Butler to the defendants were dated prior to the notice, and the one for 1,001 dollars and 25 cents, was actually due at the time they received notice of the assignment; and, after deducting the amount of the return premiums, there was a balance due on that note of 738 dollars and 75 cents, which was more than

Bates v. N. Y. Ins. Co.

sufficient to absorb the three dividends amounting only to 525 dollars. By the terms of the association, the defendants could not be called upon to transfer the stock, until the 20th of January, 1798, being the day on which the last instalment for the shares was paid; and they were then bound to make the transfer, and would not have been justifiable in denying it, until another dividend was made, so as to satisfy the residue of their demand against Butler. We wish to be understood that our opinion of the defendants' right [*243] to apply the three dividends of 525 *dollars to the payment of their demand against Butler, is founded on the circumstance that the first note was actually due when they received notice of the assignment. The money in their hands, they had a right to consider it as appropriated to the payment of that demand; and it is unnecessary to say what would have been our decision had the note not been due. We are, therefore, of opinion, that the plaintiff is entitled to recover the 465 dollars only, with the interest from the 20th of January, 1798.

Judgment accordingly.(a)

(a) The books are full of cases which confirm the principle of Bates v. The New York Ins. Co. (See Comyn's Dig., Action upon the case upon Assump. A. 1; Harrison's Dig. ed. 1846, vol. 1, p. 392, ut sup. ; vol. 5, p. 95, et seq. 1 Steph. N. P. 335, Assumpsit, IV., 1; Wheaton's Selwyn, ed. 1848, p. 81, et seq.; United States Digest, Assumpsit, VI. a. d.; Id. supp. VI. a. d.; Gilchrist's Dig. Assumpsit, E. p. 29, 30; Halsted's Dig. tit. Money had and received, p. 625; Maryland Dig. tit. Assumpsit, II. b. vol. 1, 69; Minot's Dig. tit. Assumpsit, II. p. 52; Rice's Dig. tit. Assumpsit, II. p. 69; Chitty on Cont. ed. 1848, p. 601, et seq.)

Coit v. Houston.

COIT and WOOLSEY against HOUSTON.

A. being indebted to B. by a promissory note, for $1,167, it was agreed in writing between them, that A. should deliver to B. as much coal at ten dollars per chaldron, as would amount to the sum due on the note, the coal to be of the like quality with that purchased by A. of B. out of a certain ship. No time or place was fixed for the delivery, A. having in hie coal yard a large quantity of coal, and sufficient of the quality mentioned, though consisting of different kinds, immediately afterwards, and at different times, tendered to B. the coal, in satisfaction of the note, and B. made no objection to the place or mode of delivery, but said, at one time, he would send and take them, and at another, that he was not ready to receive them, and finally neglected to take them. In an action, afterwards brought by B. against A., on the note, it was held that the agreement for the delivery of the coal was valid, and that the tender on the part of A. was equivalent to a performance, so as to bar the plaintiffs' action, and might be pleaded by way of accord and satisfaction.

An accord, in order to be an effectual plea in bar, must be executed and satisfied with a recompense in fact, or with an action, or other remedy to execute it and recover a recompense. Per Thompson, J., the other judges

acc.

It is a principle settled, that if a person is to acquire a right to a debt or duty by previously doing some act, this right is as completely vested by an offer to do it and a refusal, as if the act had been actually performed, or, in other words, a tender and refusal is equivalent to a performance. Per Livingston, J., the other judges acc.

Radcliff, J., thought that the defendant ought, in strictness, to have separated the quantity sold, in order to make a specific tender, and to ascertain that it corresponded with the quality contracted for; and that the accord was never in fact executed.

THIS was an action of assumpsit, brought by the plaintiffs, as endorsees, against the defendant, as endorser, of a promissory note, given by P. and G. Skidmore, to William Burrall, for 1,167 dollars and 33 cents, payable the 14th day of November, 1800. The defendant pleaded non assumpsit, with notice that he should give in evidence an agreement, in the words following to wit: "We do agree to deliver to Coit and Woolsey as much coal as will amount, at ten dollars. per chaldron, to principal, interest and charges of the note

Coit v. Houston.

which they now hold against us, the said coal to be of an equal quality with the coal we purchased from them, from the ship New York, Captain John Seaward, which [*244] was from Glasgow. New York, *December 24, 1800. Paul Skidmore, William Houston, William

Burrall."

The notice further stated, that the defendant had offered and tendered the coal on the agreement, and that the plaintiffs refused to accept them; and further, that he had delivered, and the plaintiffs accepted, the coal in full satisfaction of the note. From the testimony stated, it appeared that the defendant had a large quantity of coal, in a coal yard, in Roosevelt street. There were 3 or 400 chaldrons, which was generally as good as that received from the ship New York, but it lay in bulk, and no considerable quantity of one kind could be taken, without mixing with others. The market price of coal at the time was about 10 dollars. Shortly after the above agreement, the defendant had cartmen and laborers ready to deliver the coal to the plaintiffs. About the beginning of February, 1801, the plaintiffs offered the coal for sale to William Dodge, saying they were obliged to take them back. On the 26th or 27th of December, 1800, the plaintiffs were requested by the defendant's clerk to take away the coal from Roosevelt street, which they said they would do. It also appeared that the defendant, soon after the contract, repeatedly called, and requested the plaintiffs to take away the coal. And at one time, one of the plaintiffs promised to call next morning and look at them. This the witness thought was between Christmas and Newyear. Another witness said it was in March. A witness testified that he was present at a time when much conversation took place between the parties on the subject, and the plaintiffs did not pretend that the defendant had ever said he was unable or unwilling to deliver the coal. In the spring of 1801, the defendant called on the plaintiffs, and tendered the coal, saying it was ready for them; and the plaintiffs answered, that they were not ready to receive it; and would take it

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