84 but not mere opinion as to extent or permanency of injury may invalidate a release of liability for injuries,81 It is not improper to rely on the opposite party's reading of the contents of the release.82 A settlement is valid though one party was attorney and adviser of the other who acted in this without advice of counsel. Medical prognosis is mere opinion and not fraud. A note procured on settlement of a fraudulent transaction does not extinguish the original liability where a part of the fraudulent scheme was to procure the note.85 Mere inadequacy of compensation to one who without being imposed on signed a release of injuries will not defeat it in equity.se A co-obligor cannot avail of a settlement procured by fraud of the other.87 A belief that evidences of right were irrevocably lost, in consequence of which one compromised is not mistake.88 Rescission is not necessary to suit on a collateral liability which was not included in the settlements but when nessary it must be seasonably made." In order to rescind an accord and satisfaction for fraud what has been paid must be returned though a part payment on a liquidated sum not disputable need not be and money need not be returned before suing on a fraudulently released claim.33 § 2. Satisfaction or discharge."-Generally speaking the accord must be executed before a satisfaction is had but an agreement to compromise on mutual performances is enforceable on showing readiness to perform. It is not necessary that everything be fully executed." It is a good defense to action on a judgment." ers-Schus v. Powers-Simpson Co., 85 Minn. 447; release represented to be hospital discharge-International & G. N. R. Co. v. Harris (Tex. Civ. App.) 65 S. W. 885; Id., (Tex. Sup.) 67 S. W. 315. To be available at law they must go to the procuring the execution of the release; if to the value of consideration can be remedied only in equity -Papke v. G. H. Hammond Co., 192 Ill. 631; release by legatee who was deceived as to validity of will-Lutjen v. Lutjen (N. J. Ch.) 51 Atl. 790. False statement made in good faith that an arm is healed "as good as ever" if relied on will invalidate-Houston & T. C R. Co. v. Brown (Tex. Civ. App.) 69 S. W. 651. Omission to stipulate for a promise made as part of consideration when caused by appeals based on relation of parties (father to son) one of whom acted without counsel, held fraud-Hearn v. Hearn, 24 R. I. 328. Misrepresentation is fraud especially if the releaser is illiterate and without good advisers-Indiana. D. & W. R. Co. v. Fowler, 103 Ill. App. 565; affirmed, 66 N. E. 394. 81. Atchison, T. & S. F. Ry. Co. v. Bennett, 63 Kan. 781, 66 Pac. 1018. 82. It was fraudulently misread as including only a receipt and settlement of expenses-New Omaha Thomson-Houston Elec. Light Co. v. Rombold (Neb.) 93 N. W. 966. 87. 88. 135. 96 Wolsey v. Price, 98 Ill. App. 503. 89. Conversion was concealed by party to a settlement and the property was merely mentioned but the liability was not included in the settlement-Ballard v. Beveridge, 171 N. Y. 194. 90. Three years too long delay-Bogue v. Franks, 100 Ill. App. 434. 91. Riggs v. Home Mut. Fire Ass'n. 61 S. C. 448; or tendered-Doyle v. N. Y., O. & W. R. Co., 66 App. Div. (N. Y.) 398; Hill v. Northern Pac. R. Co. (C. C. A.) 113 Fed. 914; Niederhauser v. Detroit, etc., St. R. Co. (Mich.) 91 N. W. 1028; Hearn v. Hearn, 24 R. I. 328. 92. Life policy-Goodson v. National Masonic Acc. Ass'n, 91 Mo. App. 339. 93. Indiana, D. & W. R. Co. v. Fowler, 103 Ill. App. 565; affirmed, 66 N. E. 394. 94. Interpretation of words defining rights discharged, see ante, § 1-A. 95. 311. Executory store-orders for wages past due-Martin-Alexander Lumber Co. v. Johnson, 70 Ark. 215; oral agreement to refund first payment on land contract of sale where title was objected to-Arnett v. Smith (N. D.) 88 N. W. 1037. Adjustment of a fire loss is an accord but not a satisfaction-Vining v. Franklin Fire Ins. Co., 89 Mo. App. 83. Kidd v. Williams (Ala.) 31 So. 458. Thus an agreement by an insurer to pay a 84. As to duration permanency and conse- ratable share of loss for repairing a buildquences of broken hip-Chicago & N. W. R. ing must be coupled with an agreement to Co. v. Wilcox (Iowa C. C. A.) 116 Fed. 913. accept-Gerhart Realty Co. V. Northern 85. Kirby v. Berguin, 15 S. D. 444; see, Assur. Co., 94 Mo. App. 356. Agreement to also, duress in exacting a payment as infect-give notes and mortgage for a smaller sum ing a contemporaneous settlement-First than those in dispute was never fulfilled by Nat. Bank v. Sargent (Neb.) 91 N. W. 595. 86. Chicago & A. R. Co. v. Green, 114 Fed. 676. $125 for wrongful death of miner in good health held so grossly inadequate as to show fraud-Russell v. Dayton Coal & Iron Co. (Tenn.) 70 S. W. 1. giving the new obligations-Slover v. Rock (Mo. App.) 70 S. W. 268. 96. Massillon Engine & Thresher Co. v. Prouty (Neb.) 91 N. W. 384. 97. Settlement comprising the taking over of a debtor corporation's assets was held A payment in consideration of discontinuing does not necessarily extinguish the cause of action."" The original liability is extinguished by a satisfaction' so far that an attorney's lien against it can be enforced only upon leave to prosecute notwithstanding; and cannot be investigated save for fraud or mistake or any item disputed,* but the liability of a covenantor for title, to a tenant in common with the releasing tenant may be saved by the terms of the agreement and discharge of codebtors under a judgment compromised as to one of their number may be in like manner avoided. Unless so agreed a satisfaction will not discharge a third person's independent liability growing out of the same transaction. A release operates as fully as judgment. Items of which the parties were ignorant are not included in a satisfaction." A party who violates it cannot take any advantage of a compromise.10 If two compromises be of the same contract, acceptance of delayed performance in payment of one waives a delay in payment of the other."1 A written release of injuries supersedes an oral satisfaction previously made.1 3. Pleading, issues, proofs, evidence.-It must be specially pleaded. If performance rather than the agreement to perform was to constitute the satisfaction, it must be pleaded." A tender back of release money need not be pleaded when it can be set off from the recovery.15 In Kentucky it was held against lissenting opinions that a tender back need not be pleaded where there were allegations of gross fraud in obtaining a release.16 Since release is matter for defense, allegations assailing it for fraud in the complaint are surplusage.17 The jury should say whether wages were due1s or whether acts and declarations of agents in presence of parties showed an acceptance of a tender1 or whether · a consideration was of value.20 Defendant pleading an accord and satisfaction must prove every element of it21 and mistake must be proved to surcharge a settlement.22 Inadequacy of con binding though not all of its accounts re- 586. It was held immaterial that acceptance ceivable had been collected-W. F. Taylor was in part the act of another if he was Co. v. Baines Grocery Co. (Tex. Civ. App.) party to the contract. 72 S. W. 260. 98. Though it be not a specialty-In re Freeman (N. Y.) 117 Fed. 680. 09. Terrill v. Deavitt, 73 Vt. 188. 1. Holmes v. Leadbetter (Mo. App.) 69 S. W. 23. 2. Code Civ. Proc. 66; Doyle v. New York, O. & W. R. Co., 66 App. Div. (N. Y.) 398. 3. Baldwin v. Central Sav. Bank (Colo. App.) 67 Pac. 179. Connor v. Etheridge (Neb.) 92 N. W. 4. 12. Boggs v. Pacific Steam Laundry Co. (Mo. Sup.) 70 S. W. 818. 13. Covell v. Carpenter (R. I.) 51 Atl. 425. In "case", release after issue joined need not be pleaded puis darrein continuance, but may be proved under the general issue-Papke v. G. H. Hammond Co., 192 Ill. 631. 14. Perdew v. Tillma, 62 Neb. 865. Allegathat "if any tion lease, it was obtained by fraudulent representations" is certain and definite enough to plead fraud-International & G. N. R. Co. v. Harris (Tex. Civ. App.) 65 S. W. 885; Id. (Tex. Sup.) 67 S. W. 315. 11. Compromises of county bonds-Dyer v. 1073. Muhlenberg County (Ky. C. C. A.) 117 Fed. 22. Perin v. Cathcart, 115 Iowa, 553. Bailey v. Wood, 24 Ky. Law R. 801. sideration while not sufficient is admissible." A preponderance will prove fraud, but it must be clear." ACCOUNTING, ACTIONS FOR. The action of account, whether in states without similar chancery relief or of enlarged scope in states giving chancery relief, will be treated together with the chancery suit for accounting. Agreements between parties to account fixing amount due and providing for payment, and book debts or other open or mutual accounts. as well as actions thereon will be found elsewhere.25 § 1. Nature of remedy and jurisdiction of courts.--For an account of one item the remedy is at law,20 but numerous and disputed items,27 or complicated accounts and necessity for discovery, 28 require an accounting in equity. Where five years have elapsed since a mutual settlement,20 or where both parties have been equally negligent in keeping accounts and have postponed proof until adequate evidence is impossible," an accounting in equity will not be granted. No accountable relation subsists between the real owner of money and a broker who received it from a third person or between one who was on certain future conditions to receive a commission and the person who was to pay it,32 but an accounting may be given in equity to one who has a joint interest by reason of furnishing money for business with another in trust relations, though the arrangement is not a partnership. A court of equity may order an accounting to enforce contribution," or to determine the amount due an employe working for a percentage of the net profits of the business,85 but not to compel an attorney to pay over money collected on a claim. Accounting cannot be had in courts of inferior jurisdiction. 23. Dorsett v. Clement-Ross Mfg. Co. (N. C.) 42 8. E. 612. 87 Co., 202 Pa. 480; duress in a settlement proved by the fact that it entered into a payment exacted at the same time-First Nat. Bank v. Sargent (Neb.) 91 N. W. 595; presumption that note was in full settlement not rebutted-Danes v. Slitor (Iowa) 91 N. W. 817. test that it was not a discharge-Daugherty Claim of excessive amount settled through 24. C. & N. W. R. Co. v. Wilcox (C. C. A.) 116 Fed. 913. Evidence held not to show an accord and satisfaction where a payment tendered as in full was accepted under pro V. Herndon (Tex. Civ. App.) 65 S. W. 891. Evidence not sufficient where a check was marked "In full" but testimony was conflicting whether it was put on before or after the check was cashed-Blodgett v. Vogel (Mich.) 90 N. W. 277. Held insufficient that check was sent without condition but with counterclaim sufficient to balance account, which counterclaim was rejected and payment of the balance immediately demanded-Fremont Foundry & Mach. Co. v. Norton (Neb.) 92 N. W. 1058. Evidence of fraud-L & N. R. Co. V. Carter. 23 Ky. Law R. 2017; of duressBoydan v. Haberstumpf (Mich.) 88 N. W. 886; of mental incompetency of party-Cundell v. Hoswell (R. I.) 51 Atl. 426; L. & N. agents and not communicated to principal 30. ac Twenty years' delay after abandonment of 31. McKay v. Hudson, 118 Fed. 919. R. Co. v. Carter, supra; sufficiency of evi- Loan brokerage-Moore v. Hammond (Or.) 110 Fed. 897. 33. Harvey v. Sellers, 115 Fed. 757. 34. Northern Trust Co. v. Marsh, 98 Ill. 35. 311. Lee v. Washburn, 37 Misc. (N. Y.) 36. Pfau v. Fullenwider, 102 Ill. App. 499. 37. City court of New York-Gorse V. Lynch, 36 Misc. (N. Y.) 150. § 2. Persons liable and entitled to accounting.-Accounting between persons in particular relations will be found in topics treating of those relations. The right to an accounting pertains to certain relations of a fiduciary or representative nature such as agency; trusteeships; partnerships. Persons jointly interested 30 in property or profits of sale of land, as co-tenants,10 may have an accounting. Use of a wife's name to avoid her husband's creditors will not deprive her of accounting." § 3. Procedure before reference or without reference.-General questions of procedure in matters not peculiar to this remedy are treated elsewhere. A suit or action for accounting may be joined with or made incidental to other suits or actions under proper circumstances." Annexation of copies of accounts to pleadings is sometimes necessary or proper.“ 48 Parties. Complainants asserting distinct rights generally cannot unite in the bill; the rule applies to heirs and administrator of an estate in an accounting of personal estate or rents and profits of land." Receipt of part of corporate funds, or connivance at diversion thereof, renders one a proper party to an accounting sought by a corporate creditor. A son, who secured his father's debt by mortgage, is a necessary party to an accounting by the father against the creditor for excess of money received on payment." That brokers have dealt with one who received funds from another for secret speculation in stock will not make them parties to a suit for accounting by the owner of the funds against the other.48 Improper joinder of parties defendant authorizes dismissal only, not judgment for all defendants." 53 54 51 Pleading and evidence.—A bill against two partnerships is multifarious though one defendant is a common partner.50 The complaint must show a contract to pay, or a breach thereof, or existence of fiduciary or partnership relations, and an allegation of partnership relations which may as well be construed as agency is insufficient."2 Defendant is entitled, on demand, to a list of the items without regard to the form of action. An account of profits cannot be taken where it is not shown what goods were sold. A bill for accounting must allege disposal of the funds received by defendant, receipt of benefits by him from the funds, and any excess of authority he may have employed." Defendant need not answer the bill fully if he denies existence of the relation on which the duty to account is based." A cross-bill may be filed after the report of master.57 The party seeking to impeach an accounting for fraud must set out the particular facts relied on. 58 38. See Agency; Brokers; Factors; Es- 47. tates of Decedents; Trusts; Partnership and the like. 39. Bradley v. Jennings, 201 Pa. 473. 40. Regan v. Regan, 192 Ill. 589. One tenant in common may require another in possession to account-Keller v. Lamb, 202 Pa. 412. 41. 42. Bradly v. Jennings, 201 Pa. 473. See Causes of Action and defenses as to joinder. Accounting as proper incidental relief see titles like Copyright; Creditor's Suits; and other titles treating of equitable remedies. 43. See Equity (Equity Practice); Pleading. 48. Canon v. Ballard, 62 N. J. Eq. 383. McKay v. Hudson, 118 Fed. 919. Schaake v. Eagle Automatic Can Co., 135 Cal. 472. 67 Pac. 759. 50. Fletcher, Eq. Pl. & Pr., § 113; Bovaird v. Seyfang, 200 Pa. 261; Cannon v. Ballard, 62 N. J. Eq. 383; order reversed, 52 Atl. 352. 51. Rivelson v. Silverstein, 72 N. Y. Supp. 594. 52. Conger v. Judson, 69 App. Div. (N. Y.) 121. 53. Ala. Code, § 3290; Morrisette v. Wood, 128 Ala. 505. 54. Cawley v. Cawley (Mass.) 63 N. 1070. E. 55. Mere allegation that money was placed in defendant's hands is insufficient44. Fletcher Eq. Pl. & Pr., 49; Clark v. Thompson v. Snyder, 113 Fed. 531. Holbrook, 146 Mass. 366. 45. Scott v. Caloit, 3 How. (Miss.) 148. Schaake v. Eagle Automatic Can Co. 135 Cal. 472. 67 Pac. 759. 46. 58. Fletcher Eq. Pl. & Pr.. 294. 57. Sowles v. Hall, 73 Vt. 55. Judgment or decree.-It seems a decree to account is not generally enrolled unless the accounting was only part of the relief given." The judgment to account should require it to be done before the court or referee."0 61 § 4. Reference and proceedings thereon.-Particular matters relating to reference to master or commissioners in chancery, or to referees2 will be found under other topics. Reference of the whole cause to a master is becoming the more common practice. An accounting of surplus profits due the state from a railroad company is properly referred to a master. Before ordering a reference the court should determine the right to account if it is made an issue."5 Stating the account; items.-An accounting may include a note given to the accounting payor as security though his liability thereon has not been determined."" A partner may be credited for the excess paid for his interest in property purchased by a co-partner by reason of the fraud of the latter."7 § 5. Proceedings on coming in of report. 68 The proceedings after reference to an auditor in an action of account should be governed by rules of trial before the court and not by the strict rules of jury trials. Judgment should not be given against non-residents who sold their interests before debts were contracted, but against the purchasers. An account judgment giving a certain amount of accrued income to a beneficiary under a testamentary trust is not conclusive in a subsequent action to dispose of income accruing after his death." ACCOUNTS STATED AND OPEN ACCOUNTS. 78 § 1. Nature and elements of the several kinds of accounts.-An account stated when itemized must show the relation of debtor and creditor," but may be made orally,72 and the assent of the party to be charged only, is necessary." A mutual agreement as to the accuracy of the statement of an attorney mutually employed to calculate principal and interest on a written contract requiring payment in installments," or the estimate of a water commissioner as to value of work done under a public contract together with the contractor's receipt for payment,75 or statements of accounts between corresponding banks mutually acknowledged to be correct, or the balance shown by a bank book and canceled checks," or statements of account received by a bank depositor without objection for an unreasonable length of time,78 constitute an account stated; but a statement of amount due a decedent made by her husband and a reply by the debtor promising payment," or a mere request for extension of time where no account is presented, and no disputed items exist,8° is insufficient to establish one. Fair settlement of 59. 60. ant Fletcher Eq. Pl. & Pr., § 729. 71. Acts N. C. 1897, c. 480; Knight v. Tay A judgment merely directing defend- lor (N. C.) 42 S. E. 537. to account is insufficient-Silliman V. 63. Fletcher Eq. Pl. & Pr. § 583; Kimberly v. Arms, 129 U. S. 512, 32 L. Ed. 764. 64. Surplus profits due under Loc. Laws, 1847, p. 77; Terre Haute & I. R. Co. v. State (Ind.) 65 N. E. 401. 65. Jordan v. Underhill, 71 App. Div. (N. Y.) 559. 66. Moss v. Odell, 134 Cal. 464, 66 Pac. 581. Pac. 83. Pardridge v. Ryan, 134 III. 247. 69. Strang v. Thomas, 114 Wis. 599. TO. Rudd v. Corneli, 171 N. Y. 114. 72. Civ. Code Cal., § 1622; Converse v. Scott (Cal.) 70 Pac. 13. 73. Leiser v. McDowell, 69 App. Div. (N. Y.) 444. 75. 315. 74. Krueger v. Dodge, 15 8. D. 159. McCormick v. City of St. Louis, 166 Mo. 76. Louisville Banking Co. v. Asher, 23 Ky. Law R. 1180. 77. Kenneth Inv. Co. v. National Bank of Republic (Mo. App.) 70 S. W. 173. 78. Nodine v. First Nat. Bank (Or.) 68 Pac. 1109. 79. Kauffmann v. Judah (Sup.) 79 N. Y. Supp. 494. 80. Woodriff v. Hunter, 65 App. Div. (N. Y. 404. |