Smith v. Bell and others.
SMITH against BELL and others.
In Error from the Supreme Court, 1805.
THE judgment of the Supreme Court was reversed, and the only written opinion given was that of Chancellor Lansing, who, after considerable argument to show that the allowance of new for old is reasonable, and supported by usage, concludes thus, " From the nature of the contract of insurance, I think the allowance for replacing the old materials with the new is reasonable and proper, and if so, that as the deduction is professedly made on the principle that the value of the subject insured has been enhanced to that amount, that deduction ought to be made before the test of a technical total loss or not is applied; for the doctrine of technical total loss is expressly founded on the position that the subject insured has been deteriorated more than one half. I am therefore of opinion, that the judgment of the Supreme Court be reversed."
II. Of the effect of a tender and refusal after Accord.
1. 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
асс. Coit & Woolsey v. Houston, 243.
II. Of the effect of a tender and refusal after Accord.
2. 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 cer-
tain ship. No time or place was fixed for the delivery, A. having in his
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 deliv-
ery of the coal was valid, and that the tender on the part of A. was equi-
valent to a performance, so as to bar the plaintiffs' action, and might be
pleaded by way of accord and satisfaction.
Coit & Woolsey v. Houston, 432.
3. 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 Living-
ston, J., the other judges acc. Id.
4. Radcliff, J., thought that the defendant ought, in strictness, to have sepa-
rated 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.
5. See Radcliff's Mss. p. 559.
Case of stale demand, where statute of limitations not pleaded.
Ray and others v. Bogert, 608. See vol. 2, p. 432.
ACT FOR GIVING RELIEF IN CASES OF INSOL-
ACT FOR THE RELIEF OF DEBTORS WITH RE-
SPECT TO THE IMPRISONMENT OF THEIR
PERSONS.
ACT TO LAY A DUTY ON STRONG LIQUORS,
AND FOR REGULATING INNS AND TAVERNS.
1. The supervisor an essential member of the board of commissioners, and
he must convene them. Palmer qui tam v. Doney, 519.
2. Where a license expired on March 1st, and there is no meeting of the
board till 8th of April following, to grant new licenses, an inn-keeper may
until that time, act under the former license. Id.
See S. C. vol. 2, p. 346.
1. On voluntary payment.
2. Evidence in.
III. Covenant.
1. Where it will lie.
2. Damages.
IV. Commencement of-what.
V. Right of-not divested after commencement, except
by some act of the Plaintiff.
I. Assumpsit.
1. On Guaranty.
1. A guarantee for the payment of a sum, in the first instance, proposed to be
paid by others, is an absolute engagement, and on failure of the others at
the time, the defendant is liable.
Bank of New York v. Livingston, 524.
See S. C. vol. p. 409. Authorities, 410, n. (a.)
2. For money had and received.
2. A. subscribed 50 shares in the New York Insurance Company, at fifty dol-
lars each, the amount to be paid in five instalments of ten dollars on each
share; and by the articles of association, no transfer of any share could
be made, until all the instalments were paid in.
A., after paying the two first instalments, on the 22d of July, 1796, assigned
the shares, and all his interest therein, to B., who punctually paid the three
remaining instalments to the company, at the times at which they were
respectively payable.
The company knew of the assignment to B., on the 20th of January, 1797,
and between that time and the 20th of January, 1798, three dividends
had been declared on the stock or shares by the company, which amounted
to 525 dollars. The company held three notes of A. given for premiums
of insurance, one of which, dated the 3d of June, 1796, was for 1,001 dollars
and became due in December, 1796; and the others, dated in September,
1796, became due in March following; and they applied the 525 dollars
due for the dividends, towards the payment of A.'s notes, after deducting
which sum,
and the sum for return of premiums, there remained due to
the company, on the notes of A., 465 dollars; and, when B., on the 20th
of January, 1798, paid the last instalment, and demanded a transfer of the
shares to him; the company refused to make the transfer, until the bal-
ance due from A., (who was then insolvent,) was paid to them. B. paid
the 465 dollars to the company, who thereupon made the transfer to him.
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