# Clayton v. Clark > Mississippi Supreme Court · October 15, 1896 · 74 Miss. 499 URL: https://www.frixlaw.com/law-library/cases/7987972 ## Case - **Full name:** W. L. Clayton, Administrator v. John Clark - **Court:** Mississippi Supreme Court - **Decided:** October 15, 1896 - **Citations:** 74 Miss. 499 - **Precedential status:** Published - **Opinion:** Concurrence by Whitfield - **Judges:** Whitfield, Woods - **Cited by:** 30 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7987972 ## Opinion text Whitfield, J., specially concurring. In the notes to Cumber v. Wane, Smith’s Leading Cases, vol. 1, part 1, p. 602, it is said: “There is authority for saying that a liquidated demand, founded upon a bill of exchange or *511 promissory note, even though overdue, may be forgiven by word of mouth; and if this be law, a fortiori, such a demand might be discharged by the payment of a less amount than that secured’by the note,” citing Foster v. Dowber, 6 Exch., 839. But it is said that this is not true, if the .debt be not evidenced by bill of exchange or promissory note. Ib. This is in the English notes. In the American notes it is said, p. 630, citing Campbell’s Estate, 7 Burr, 100: “A parol forgiveness of a promissory note ... is invalid, unless there is a consideration or the instrument is surrendered. All the cases agree,” said Gibson, C. J., “ that the final discharge of a debt without consideration or the delivery up of the security is inoperative. ” Again, on page 631: “The appropriate mode of releasing a debt is by a'writing under seal or by surrendering the bond or note constituting the evidence of the obligation. . The surrender of a right of action . . . requires a seal and consideration, or that the instrument which represents the right should be handed over by the creditor, ’ ’ citing many authorities, and the same rule is set out on pages 633 and 635, at which last page it is said: “And it has been held that the debt may be forgiven by the surrender of the instrument to the obligor . . . without the aid of a seal or the presence of a consideration.” And in Clark on Contracts (1894), p. 184 et seq., the subject is fully discussed, the author saying, p. 190: “Since a person may, if he choose, make a gift to another which, when executed, will be irrevocable, a creditor may, on receiving part of the debt, expressly forgive the debtor the residue,” citing many authorities, among others State v. Story, 57 Miss., 738 , which last case is an improper citation, for that was a case of compromise of a disputed claim, resting on wholly different considerations. Finally, Young v. Power, 41 Miss., 197 , expressly holds that “where a note is delivered up by the creditor to the debtor, accompanied by the declaration that the creditor forgave the debt, or would not require payment, it was a valid executed gift of the debt and a *512 release of it.” With ns, of coarse, the presence or absence of the seal counts for nothing. • Now, in this case there are present all the facts which, under the above principles, make the delivery up of the notes a valid executed gift, falling strictly within the rule announced in Young v. Power, supra. The notes were surrendered by the deceased creditor to the debtor on the express agreement that they were not to be paid. There can, in such case, be no danger of fraud, perjury, or mistake. In the English note above referred to, in Smith’s Leading Cases, p. 610, it is said: i£A principle so deeply established in the very forms and elements of the law, and which has so long sustained itself in the courts, has something better than a mere barren technicality to rest upon. In fact, as a technical rule, it may be doubted whether the maxim that a smaller sum cannot be a satisfaction of a larger debt, could apply to anything but a bond, which the old law regarded as an actual gift or transfer of the money, and gave the action of debt for the detainer of what was, in law, the very property of the obligee; technically it would be difficult to make it apply to simple contracts. But, as a principle of evidence, this rule which requires for the substantiation of sxich agreements either a surrender of the instrument or a legal release, is a just, wise, and convenient rule, so great is the danger of fraud and mistake. ’ ’ The distinction here drawn, placing the rule for its reason on the surrender of the instrument as a mode of proof rather than upon a supposed doctrine of substantive law that in no case can the payment of a smaller sum satisfy the debt, meets, on principle and on authority, the exigencies of the present case. And while not desiring to be understood as dissenting from the vigorous and splendid reasoning of my brother, Woods, I simply prefer to rest the decision of this case upon its proper facts. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7987972. Public record. Not legal advice.