* 682 and only to that. (ƒ)

Plea, a concord between the parties, that the defendant should pay plaintiff £3, and his attorney's bill, and that he had paid the £3, and was ready to pay the attorney's bill, but he never showed him any. This was held no defence, because the accord was not wholly executed. See also Peytoe's case, 9 Rep. 79 b; Anonymous, Cro. Eliz. 46; Case v. Barber, T. Raym. 450, T. Jones, 158; Bree v. Sayler, 2 Keble, 332; Hall v. Seabright, 2 Keble, 534; Brown v. Wade, 2 Keble, 851; Frentress v. Markle, 2 Iowa, 553; Coit v. Houston, 3 Johns. Cas. 243; Watkinson v. Inglesby, 5 Johns. 386; Frost v. Johnson, 8 Ohio, 393; Woodruff v. Dobbins, 7 Blackf. 582; Ballard v. Noaks, 2 Pike, 45; Brooklyn Bank v. De Grauw, 23 Wend. 342; Bryant v. Proctor, 14 B. Mon. 457; Bigelow v. Baldwin, 1 Gray, 245; Francis v. Deming, 59 Conn. 108; Herrmann v. Orcutt, 152 Mass. 405; Cannon River, &c. Assoc. v. Rogers, 46 Minn. 376; Pettis v. Ray, 12 R. I. 344.

(f) Babcock v. Hawkins, 23 Vt. 561. This was an action of book account. It appeared, that after the commencement of the suit the parties met, and the defendant agreed to give a note for thirty dollars to the plaintiff, and pay all the plaintiff's costs in the suit, except the writ and service. The defendant executed the note, and agreed to pay the costs, as above stated; and the plaintiff then executed and delivered to him a receipt in these words, "Received of Peter Hawkins thirty dollars by note given per this date, in full to settle all book accounts up to this date;" and the suit, as well as the subject-matter of the suit, was considered as settled by the parties. The defendant never paid any portion of the costs, but paid part of the note; and for the reason that the defendant had not paid the costs, the plaintiff refused to discontinue the suit. Upon these facts, found by an auditor, the county court rendered judgment for the defendant, which was affirmed by the Supreme Court. Redfield, J., in delivering the opinion of the court, said: "We think it must be regarded as fully settled, that an agreement upon sufficient considera

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tion, fully executed, so as to have operated in the minds of the parties as a full satisfaction and settlement of a pre-existing contract or account between the parties, is to be regarded as a valid settlement, whether the new contract be ever paid or not; and that the party is bound to sue upon the new contract, if such were the agreement of the parties. This is certainly the common understanding of the matter. It is reasonable, and we think it is in accordance with the strictest principles of technical law. 1. There is no want of consideration in any such case, where one contract is substituted for another, and especially so where the amount due upon the former contract or account is matter of dispute. The liquidating a disputed claim is always a sufficient consideration for a new promise. Holcomb v. Stimpson, 8 Vt. 141. 2. The accord is sufficiently executed, when all is done which the party agrees to accept in satisfaction of the pre-existing obligation. This is ordinarily a matter of intention, and should be evidenced by some express agreement to that effect, or by some unequivo cal act evidencing such a purpose. This may be done by surrender of former securities, by release or receipt in full, or in any other mode. All that is requisite is, that the debtor should have executed the new contract to that point whence it was to operate as satisfaction of the pre-existing liability, in the present tense. is shown in the present case by executing a receipt in full, the same as if the old contract had been upon note, or bill, and the papers have been surrendered. 3. In every case where one security or contract is agreed to be received in lieu of another, whether the substituted contract be of the same or a higher grade, the action, in case of failure to perform, must be upon the substituted contract. And in the present case, as it is obvious to us that the plaintiffs agreed to accept the note, and the defendant's promise to pay the costs, in full satisfaction, and in the place of the former liability, the defendant remained liable only upon the new contract. 4. In all cases where the party intends to retain

That

his former remedy, he will neither surrender or release it; and whether the party shall be permitted to sue upon his original contract is matter of intention always; unless the new contract be of a higher grade of contract, in which case it will always merge the former contract, notwithstanding the agreement of the debtor to still remain liable upon the original contract." See in Com. Dig. tit. Accord (B4), it is said that "an accord, with mutual promises to perform, is good; though the thing be not performed at the time of the action, for the party has a remedy to compel the performance. Yet the remedy ought to be such that the party might have taken it upon the mutual promise at the time of the agreement." And in Sard v. Rhodes, 1 M. & W. 153, which was assumpsit by the indorsee against the acceptor of a bill of exchange for £43, the defendant pleaded that, after the bill became due, one G. P., the drawer of the bill, made his promissory note for £44, and delivered the same to the plaintiff in full satisfaction and discharge of the bill. Replication, that although he, the plaintiff, accepted the note in full satisfaction and discharge of the bill, yet that the note was not paid when due, and still remained unpaid. Held, that the replica tion was bad, and that the plaintiff, having accepted the note in full satisfaction and discharge of the bill, could not sue upon the latter. Held, also, that the plea was sufficient. And see to the same effect Good v. Cheesman, 2 B. & Ad. 328; Evans v. Powis, 1 Exch. 601; Simmons v. Clark, 56 Ill. 96; Gulf, &c. Ry. Co. v. Harriett, 80 Tex. 73. But the rule established by these cases has made no material change in the form of the plea. It is still true that an accord without satisfaction is not good. Therefore if a defendant intends to set up a new promise without perform ance in bar of an action, he must take care to aver distinctly that it was agreed

(x) Acceptance of a check and longcontinued silence are not an accord and satisfaction, if it was not accepted as a settlement and compromise of a matter in dispute. McKay v. Myers, 168 Mass. 312,

that the new promise should be received in satisfaction. If he sets forth the agreement in such a manner that it appears upon the face of the plea that performance, and not the promise to perform, was to be received in satisfaction, and does not aver performance, the plea will of course be bad. This will explain several recent English cases which might seem at first sight to be at variance with what is stated in the text. See Reeves v. Hearne, 1 M. & W. 323; Collingbourne v. Mantell, 5 M. & W. 289; Carter v. Wormald, 1 Exch. 81; Gifford v. Whittaker, 6 Q. B. 249; Griffiths v. Owen, 13 M. & W. 58; Harris v. Reynolds, 7 Q. B. 71; Gabriel v. Dresser, 5 C. B. 622, 29 Eng. L. & Eq. 266; Bayley v. Homan, 3 Bing. N. Č. 920; James v. David, 5 T. R. 141; Allies v. Probyn, 5 Tyrwh. 1079; Hall v. Smith, 15 Iowa, 584.

(g) Com. Dig. Accord (b. 4); Good v. Cheeseman, 2 B. & Ad. 328, per Parke, J.; Cartwright v. Cooke, 3 B. & Ad. 701; Evans v. Powis, 1 Exch. 907; Bayley v. Homan, 3 Bing. N. C. 621; Wentworth v. Bullen, 9 B. & C. 850. In Pope v. Tunstall, 2 Pike, 209, it was held, that in debt on a bond, a plea averring that, before suit brought, the obligees in the bond had taken a third person into partnership, and that the defendant, with two securities, executed to the new partnership a bond on longer time, which was accepted and received in full satisfaction and discharge of the bond sued on, is good in bar as a plea of accord and satisfaction.

(h) Thus, a plea that the plaintiff accepted an order of the defendant on a third person for a given sum, in satisfaction of the promises, is no bar to an action for the original cause of indebtedness; nor is a plea good as an accord and satisfaction that the plaintiff agreed to accept the note of a third person, which, on being tendered, he refused to accept. Hawley v. Foote, 19 Wend. 516.

47 N. E. 98. It can only exist when intended and made with full knowledge of the facts. Mudsill Mining Co. v. Watrous, 61 Fed. 163, 9 C. C. A. 415; Stoney Creek Woolen Co. v. Smalley, 111

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(n) Dixon v. Dixon, 7 Ellis & B. 903. See also Leake v. Young, 5 Ellis & B. 955. (0) Thus, where upon the indorsement of a note it was agreed by parol between the indorser and the indorsee, that if the former would execute to the latter a deed for a tract of land, the latter would strike out the indorsement and release the indorser from all liability thereon, and the indorser did afterwards execute a deed for the tract of land, which was accepted by the indorsee; held, that proof of these facts was not evidence tending to establish a contract variant from that contained in the written indorsement, and was competent to establish an accord and satisfaction. Smitherman v. Smith, 3 Dev. & Bat. 89. So, where P and the defendant agreed to purchase a vessel together, and the defendant having received $190 of P, for which he gave his note on demand, purchased the vessel in his own name, and afterwards signed a writing which set forth that a portion of the vessel was to belong to P upon his paying therefor, and acknowledged the receipt of $190 towards such payment, which was admitted to be the same money for which the note was given, and such writing was accepted by P; it was held, that this was an accord and satisfaction

(x) An agreement to release a party from an antecedent contract, when there is clearly a gain to the party released, is usually held, because of the agreement for mutual releases, if they have been executed, to supply a sufficient consideration

of the note, although it was not cancelled. Peck v. Davis, 19 Pick. 490.

(p) Thus in Vedder v. Vedder, 1 Denio, 257, A and B having mutual causes of action in tort against each other, had an interview to adjust the demands of B; and for the satisfaction of such demands, A paid him a sum of money and took his receipt; but B insisted, as a condition to such adjustment, that A should execute to him a receipt in "full of all demands on his part, to which A consented, and such receipt was given, nothing being said respecting the particular demand of A. Held, notwithstanding, that it was a good accord and satisfaction of A's cause of action against B. So, in Foster v. Trull, 12 Johns. 456, it was held, that an agreement by two, having each an action for false imprisonment pending against the other, to discontinue their respective actions, and an actual discontinuance accordingly, are a good accord and satisfaction. So, an agreement to refer mutual causes of action to arbitration, and a performance of the agreement, is a good accord and satisfaction in respect of such causes of action. Williams v. The London Commercial Exchange Co., 10 Exch. 569, 29 Eng. L. & Eq. 429.

for each other. Templin v. Hobson, 10 Col. App. 525, 51 Pac. 1019. See Smith v. St. Paul & D. R. Co., 60 Minn. 330, 62 N. W. 392; Walther v. Briggs, 69 Minn. 98, 71 N. W. 909; 34 Am. L. Reg. N. s. 232.