Opinion of the Court, per EARL, J. sale would have obtained a full and absolute title to the firm property purchased. Although the defendants were insolvent, they could have paid these debts either in money or in property belonging to the firm, and in so doing, they would have perpetrated no fraud upon their creditors. As they could pay the debts either with firm money or firm property, we cannot perceive why they could not, through an assignee, direct the same debts to be paid out of the proceeds of the firm property. It certainly cannot be a fraud upon firm creditors to apply firm property to the payment of debts for the satisfaction of which such property could be taken. It is a mistake to suppose that the firm property is now in the hands of a court of equity for distribution and application upon equitable principles. No suit whatever is pending in equity, and no application has been made to a court of equity in reference to the firm property. The defendants have made an assignment of their firm property authorized by law, and the assignee is to dispose of it, not in accordance with the directions of any court, but in precise accordance with the terms and conditions of the assignment. It may be that if these firm assets were to be administered in a court of equity, according to equitable principles, the court would direct the firm debts to be paid before these debts to Clark, although it is not certain that it would do so, and it is not now necessary to determine whether it would or not. (Hoare v. Oriental Bank, L. R. [2 Appeal Cases] 589.) These defendants, being jointly liable to Clark, have themselves provided that his claims shall be paid out of the firm assets, and there is no room for the interference of any court. As between him and them his claim upon the firm property is just as meritorious and equitable as the claim of firm creditors. After the execution of the assignment and the provision made therein for the payment of these debts, L. Sophia Williams had no equitable claim that the firm property should not be applied precisely as she had directed that it should be applied. Hence on the principles of subrogation the firm SICKELS-VOL. LXXXIII. 11 Opinion of the Court, per EARL, J. creditor can take no equity from her which they can enforce against the firm property, upon principles laid down in the case of Saunders v. Reilley (105 N. Y. 12), and cases therein cited. If these notes had been the individual debts of Helen A. Williams, for which L. Sophia Williams was in no way liable, then the provision in the assignment for their payment out of firm assets would have been a fraud upon the firm creditors within the case of Wilson v. Robertson (21 N. Y. 587). The ground of that decision was that the joint property was appropriated for the payment of an individual debt of one of the members of the firm, for which the other member was in no way liable. But no case can be found holding that it is a fraud upon the firm creditors for the members of a firm to appropriate the firm property to the payment of debts for which they are all liable. It is never a fraud upon the creditors of any person to appropriate his property for the payment of a debt for which he is liable; and so one who is jointly liable with others as a member of a firm or otherwise, may appropriate his individual property for the payment of a joint debt, for the reason that he is liable to pay the joint debt, and his property could be seized by virtue of an execution issued upon a judgment for the joint debt to satisfy the same. (Crook v. Rindskopf, 105 N. Y. 476.) No benefit or ultimate advantage is secured to L. Sophia Williams by the appropriation of the firm property for the payment of debts which, as between her and Helen A. Williams are the debts of the latter. Upon payment of these debts there will be in the hands of the assignee a claim for the reimbursement of the firm against the individual estate of Helen A. Williams. That claim will be in the hands of the assignee to be administered and disposed of under the assignment, and no benefit therefrom can come to either member of the firm until after the payment of all the firm and individual debts. We, therefore, see no reason to doubt that the assignment was valid and free from the imputation of fraud. Statement of case. The orders of the General and Special Terms should be reversed and the motion granted, with costs in all the courts and ten dollars costs of the motion. All concur. Order reversed. THE OREGON PACIFIC RAILROAD COMPANY, Appellant, v. It seems that a consideration is not an essential part of an executed contract. An agreement to rescind a previous contract containing mutual stipulations imports that, until rescinded, it was recognized as subsisting and binding by both parties, and the mutual releases form a sufficient valid consideration for the new agreement. A contract obtained by duress is not ordinarily void, but merely voidable, and may be subsequently ratified and confirmed, and the party claiming to have been constrained, by afterwards voluntarily acting upon it, thereby affirms its validity and loses the right to avoid it. One entitled to repudiate a contract on the ground of duress, should act promptly. In an action to recover possession of 100 bonds issued by plaintiff, it appeared that the bonds in suit, with others, were delivered to G., defendant's testator, under an agreement on his part to furnish plaintiff certain rails and other railroad material; that G., having failed to take any steps towards performing the contract, although urged so to do, plaintiff's president, without notifying G. that if he did not perform, the contract would be considered rescinded, purchased the rails, notified G. of this, claimed that the contract had been broken and demanded a surrender of the bonds. G. refused to surrender or to consent to the cancellation of the contract, unless he was allowed to retain 100 of the bonds. Thereupon an agreement was made between them that the contract should be canceled and surrendered, G. to retain the bonds in question upon his surrendering the others, which he did. Interest on the bonds in suit was paid by plaintiff to G. and his execu tors for about six years, when this action was commenced. Plaintiff claimed that the agreement of cancellation was void, because without consideration; also that it was invalid, because obtained by duress. Held, that a verdict was properly directed for defendants; that said agreement was founded upon a sufficient consideration, and if obtained by duress was subsequently ratified and confirmed. (Argued June 2, 1891; decided June 16, 1891.) 128 83 152 168 128 83 j165 105 Statement of case. APPEAL from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made May 23, 1890, which affirmed a judgment in favor of defendant, entered upon a verdict directed by the court. The nature of the action and the facts, so far as material, are stated in the opinion. Joseph II. Choate for appellant. On August thirteenth, Garrison had not complied with the terms of the contract, to purchase rails deliverable in San Francisco at as early a date as reasonably practicable, and on that day as he admitted, he had broken the contract. (Hedges v. H. R. R. R. Co., 49 N. Y. 223; Colt v. Owens, 90 id. 368; N. II., etc., Co. v. Quintard, 6 Abb. [N. S.] 128.) The transaction of August thirteenth is void for duress. (Scholey v. Mumford, 60 N. Y. 498; McPherson v. Cor, 86 id. 472; Vaughn v. Village of Port Chester, 43 Hun, 427; Foshay v. Ferguson, 5 Hill, 154; Guilleaume v. Rowe, 94 N. Y. 268; Hamilton v. Cummings, 1 Johns. Ch. 516, 523; G. M. L. Ins. Co. v. Reals, 79 N. Y. 202; Merton v. Belden, 49 id. 373; Buckingham v. Corning, 91 id. 525; Moons v. Townshend, 102 id. 387, 392; Story's Eq. Juris. $ 700; Pom. Eq. Juris. § 914.) The trial court erred in withdrawing the case from the jury and in directing a nonsuit. (Stone v. Flower, 47 N. Y. 566; Frecking v. Rolland, 53 id. 424; Clemence v. Auburn, 66 id. 338; Weil v. D. D., etc., R. R. Co., 121 id. 152; Adams v. Irving Bank, 116 id. 614; Dunham v. Griswold, 100 id. 226; Potter v. Greene, 39 Hun, 72, 78; Code Civ. Pro. § 829; Lyon v. Park, 111 N. Y. 350.) Horace Russell for respondents. The agreement of August thirteenth was based upon a sufficient consideration, viz., the rescission and cancellation of the agreement of June thirteenth. (Bishop on Cont. $$ 68, 81; Tice v. Zinsser, 76 N. Y. 549; Rollins v. Marsh, 128 Mass. 116, 120; Cutter v. Cochran, 116 id. 408; Mfg. Co. v. Bradley, 105 U. S. 175; Delacroix v. Bulkley, 13 Wend. 75; Hadden v. Dimmick, 48 N. Y. 661 ; Statement of case. 13 Abb. [N. S.] 135; 31 How. Pr. 196; Perry v. Buckman, 33 Vt. 10; Brinley v. Tibbitts, 7 Me. 70; Flagg v. Dryden, 7 Pick. 52; Crans v. Hunter, 28 N. Y. 394; Stewart v. Ahrenfeldt, 4 Den. 189; Seaman v. Seaman, 12 Wend. 381; Russell v. Cook, 3 Hill, 504; Allen v. Jaquish, 21 Wend. 628; Dearborn v. Cross, 7 Cow. 48; Jenks v. Robertson, 2 T. & C. 255; 58 N. Y. 621; Horgan v. Krumweide, 25 Hun, 116; Coe v. Hobbey, 7 id. 157, 163; 72 N. Y. 146; Townsend v. Masterson, 6 Duer, 208; Lawrence v. Parker, 8 Wkly. Dig. 533.) The agreement of August thirteenth was that of the plaintiff, although the words "as president," are not attached to the president's signature thereto. (Olcott v. T. R. R. Co., 27 N. Y. 546, 556; Van Leuven v. F. N. Bank, 54 id. 671; Coleman v. F. N. Bank, 53 id. 388; Pierson v. Bank, 77 id. 304; Hoag v. Lamonte, 60 id. 96; Lee v. P. C. & M. Co., 56 How. Pr. 373; Rolling Mill v. R. R. Co., 120 U. S. 256; Scott v. M. R. R. Co., 86 N. Y. 200; Whitney v. U. T. Co., 65 id. 577; Ellsworth v. St. L. A. & T. R. R. Co., 33 Hun, 7; 98 N. Y. 648; S. H. B. Co. v. E. H. B. M. Co., 90 id. 616; Hoyt v. Thompson, 19 id. 207.) Conceding that the agreement of August thirteenth, which permitted Garrison to retain the bonds in question, was obtained by duress of goods, the plaintiff thereafter affirmed and ratified that agreement. (Lyon v. Waldo, 36 Mich. 345; Pars. on Cont. [7th ed.] 446; 1 Addison on Cont. $$ 314, 454; Bishop on Cont. § 728; 1 Chitty on Cont. 273; Burton v. Story, 3 Wend. 236; Gould v. C. C. N. Bank, 86 N. Y. 82; Baird v. Mayor, etc., 96 id. 567; Bruce v. Davenport, 3 Keyes, 472; Tarbell v. S. Co., 110 N. Y. 170; Bennett v. Ins. Co., 67 id. 274; Wright v. Bank of Metropolis, 110 id. 237; Roth v. B. & S. L. R. R. Co., 34 id. 548; Hedges v. II. R. R. R. Co., 49 id. 223; Craig v. Parkis, 40 id. 181; Davis v. Gwynne, 57 id. 676; Hunt v. Maybee, 7 id. 266.) The plaintiff cannot recover in this action, because it did not, before bringing the action, restore or offer to restore the defendants or their testator to the position in which he was before the agreement of August |