The controversy in this case grows out of the execution of the release set up by complainant in his bill, and charged to have been executed by the defendant to him.
It is no doubt true, and was the agreement, that the notes, on the execution and delivery of which, by the complainant to the defendant, the release was executed, should be signed by Francis P. Kingsley as security—both parties expected it. But it was not done; he refused to sign them when presented to him by the defendant for that purpose. The release was executed on the delivery of the notes, and there is no fraud shown, either in its execution or delivery. The most that can be said is, that complainant did not perform his contract; but that does not render the release ineffectual. The release being once fairly and regularly executed and delivered, could never afterwards be avoided at law by a failure of one of the parties to perform an act in consideration of which the release was given. It could go no further than to charge the complainant with a breach of contract, for which he would be liable. Fitzsimmons et al. v. Ogden et al., 7 Cranch R. 19.
It is well settled, though the payment of a smaller sum cannot be pleaded in satisfaction of a larger sum, yet a release under seal may be so pleaded. Com. Dig., “ Release,” E, 2, 3.
The whole question here depending upon the validity of this release, and there being nothing alleged against it, or if alleged and proved, not going to impeach it, we must regard it as binding.
The decree of the Circuit Court is therefore affirmed.