§ 4. Discharge of right of action arising from breach of contract.

(i.) Discharge by consent of the parties.

a. Release.

KIDDER v. KIDDER et al.

33 PENNSYLVANIA STATE, 268.-1859.

Assumpsit on a promissory note. Judgment for defendant. Plaintiff brings error.

On the trial, the defendants gave in evidence the following release executed by the plaintiff:

"William W. Kidder

V.

Nelson Kidder and Orris Hall.

Common Pleas of
Warren County, Pa.

"I hereby release Nelson Kidder from all individual liability for the claim upon which the above suit is based; so that if I fail in recovering judgment in the above suit, said Nelson Kidder shall be, and is hereby, released from all individual liability whatever in the premises.

"WARREN, PA., Jan. 9th, 1857."

"W. W. KIdder.

The court below instructed the jury that this was a release of the cause of action, and that the plaintiff could not recover.

To this instruction the plaintiff excepted; and a verdict and judgment having been given for the defendants, he removed the cause to this court, and here assigned the same for error.

THOMPSON, J. A release under seal is sometimes called a technical release; although in equity it has no greater effect than a parol release, yet it differs from the latter in one quality materially, it is self-sustaining, the seal implying a consideration. Not so is it with a release not under seal. There a consideration of some sort is necessary to support it. 2 Dan. C. Pr. 766; Whitehill v. Wilson, 3 Penn. R. 405; 7 Barr, 100; 1 Barr, 445; 1 Rawle. Wentz v. Dehaven (1 S. & R. 312), it is thought, sustains a different doctrine. There the release was in parol; that is, it was not under seal, and expressed no consideration. It was sustained on the ground that the release of the mortgage was by way of advancement to a child. This was inferred from the form of the

writing and forbearance to sue by the intestate during his life. Had it been expressed, the case would have doubtless stood firm upon a consideration. But that case has not been followed. In Kennedy v. Ware (1 Barr, 445), Gibson, C. J., finds fault with his apparent support of it in Whitehill v. Wilson (3 Penn. R.) and adds, "Wentz v. Dehaven is not to be sustained on any ground."

The release in question, in this case, is without a seal, and without any consideration expressed. As a release it was void. It was nudum pactum, and should have been so held by the court.

The defendant in error, feeling the force of the want of consideration, as a dernier resort has endeavored to give effect to the release as a gift to the releasor of one-half of the demand. But this is, if possible, a more hopeless undertaking than that of supporting the release without a consideration. It was not an executed gift, even if the instrument would bear the interpretation that a gift was intended; because the instrument to be given. was not delivered. If, then, it was but an agreement to give, it could not be enforced without a consideration, any more than could the release. On this point, the case In re Campbell's Estate (7 Barr, 100) need only be cited. There it is said by Gibson, C. J., that "the gift of a bond, note, or any other chattel, therefore, cannot be made by words in futuro, or by words in presenti, unaccompanied by such delivery of the possession as makes the disposal of the thing irrevocable."

But even if there had been a consideration expressed, it seems to me that the release was .so qualified as not to touch this case, but only to operate, as all such releases do in equity, as an agreement not to pursue the releasee individually. He is "hereby released from all individual liability whatever in the premises," does not touch the case on trial of joint liability. But it is not necessary to pursue this, as the points already noticed rule this case.

Judgment reversed, and a venire facias de novo awarded.1

1 See also Hale v. Spaulding, 145 Mass. 482, ante, p. 487; Collyer v. Moulton, 9 R. I. 90, ante, p. 522.

b. Accord and satisfaction.

KROMER v. HEIM.

75 NEW YORK, 574.-1879.

Appeal from order of the General Term of the Superior Court of the city of New York, affirming an order of special term denying a motion on the part of defendant to set aside an execution issued upon judgment herein, and to have the judgment satisfied of record.

On June 24, 1876, plaintiff obtained a judgment herein for $4334.08. On July 26, 1876, and pending a stay of execution, plaintiff's attorney executed and delivered to defendant a written stipulation, in and by which plaintiff agreed to accept in settlement of the judgment, if paid within a year, $3000 in cash and an assignment of defendant's interest in a certain patent right and of the assets of such patent business, or to accept $1000 in cash, $250 down and the balance in instalments, and merchandise to be delivered in amounts stated, sufficient, with the cash payments, to reduce the judgment to $1000, and an assignment of said patent interests. Defendant paid the $250 down, and made the other cash payments and deliveries of merchandise, as specified in the second alternative of the stipulation, until the judgment was reduced to less than $1000, all of which payments were received by plaintiff without objection. Defendant then executed and tendered to plaintiff an assignment of the patent interests as required, which plaintiff declined to accept, but issued an execution to collect the balance of the judgment.

ANDREWS, J. "Accord," says Sir Wm. Blackstone, "is a satisfaction agreed upon between the party injuring and the party injured; which, when performed, is a bar to all actions upon this account." 3 Bl. Com. 15. An accord executory without performance accepted is no bar; and tender of performance is insufficient. Bac. Abr. tit. Accord and Satisfaction, C. So also accord with part execution cannot be pleaded in satisfaction. The accord must be completely executed to sustain a plea of accord and satisfaction. Bac. Abr. tit. Accord and Satisfaction, A; Cock v. Honychurch, T. Ray. 203; Allen v. Harris, 1 Ld. Ray.

122; Lynn v. Bruce, 2 H. Bl. 317. In Peytoe's Case (9 Co. 79) it is said, "and every accord ought to be full, perfect, and complete; for if divers things are to be done and performed by the accord, the performance of part is not sufficient, but all ought to be performed." The rule that a promise to do another thing is not a satisfaction, is subject to the qualification that where the parties agree that the new promise shall itself be a satisfaction of the prior debt or duty, and the new agreement is based upon a good consideration, and is accepted in satisfaction, then it operates as such, and bars the action. Evans v. Powis, 1 Exch. 601; Kinsler v. Pope, 5 Strobhart, 126; Pars. on Cont. 683, note.

An exception to the general rule on this subject has been allowed in cases of composition deeds, or agreements between a debtor and his creditors; and they have been held, upon grounds peculiar to that class of instruments, to bar an action by a separate creditor, who had signed the composition to recover his debt, although the composition agreement was still executory. Good v. Cheesman, 2 Barn. & Ad. 335; Bayley v. Homan, 3 Bing. N. C. 915. The doctrine which has sometimes been asserted that mutual promises which give a right of action may operate and are good, as an accord and satisfaction of a prior obligation, must, in this State, be taken with the qualification that the intent was to accept the new promise, as a satisfaction of the prior obligation. Where the performance of the new promise was the thing to be received in satisfaction, then, until performance, there is not complete accord; and the original obligation remains in force. Russell v. Lytle, 6 Wend. 390; Daniels v. Hallenbeck, 19 Id. 408; Hawley v. Foote, Id. 516; The Brooklyn Bank v. DeGrauw, 23 Id. 342; Tilton v. Alcott, 16 Barb. 598.

Applying the well-settled principles governing the subject of accords to this case, the claim that the plaintiff's judgment is satisfied cannot be maintained. There is no ground to infer that the agreement of July 26, 1876, was intended by the parties to be or was accepted as a substitute for or satisfaction of the plaintiff's judgment. It was in effect a proposition on the part of the plaintiff, in the alternative, to accept $3000 in cash, if paid within one year, and the assignment of the patent and avails of the patent business, in full of the judgment of $4334.08, or to

accept $1000 in cash, in instalments, and the balance in merchandise, until the judgment should be reduced to $1000; and for that balance to accept the assignment of the patent interests.

The defendant had the election between the alternatives presented by the plaintiff. He elected the latter, and paid the $1000, and supplied the merchandise, until the debt was reduced to $1000, and then tendered the assignment of the patent interests, which the plaintiff refused to accept.

The judgment clearly was to remain in force until the satisfaction under the new agreement was complete. It is the case of an accord partly executed. So far as the plaintiff accepted performance, his claim was extinguished. So far as it was unexecuted, the judgment remained in full force; and however indefensible in morals it may be for the plaintiff to refuse to abide by the agreement in respect to the patent interests, he was under no legal obligation to accept the assignment tendered; and he had the legal right to enforce the judgment for the balance remaining unpaid.

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It is clear that the right to supply the merchandise was for the benefit of the defendant. The plaintiff gave him the option to pay $3000 in cash, and assign the patent interests, or to pay $3334.08 in merchandise and assign the patent interests. The merchandise was to be furnished on as favorable terms as would be allowed by Hoyt & Co., or New York rates for cash sales." It gave the plaintiff no benefit beyond what he would derive by any purchase in the open market of the same kind of goods. It is quite clear that the defendant preferred to pay $3334.08 in merchandise to paying $3000 in cash.

We think that no distinction arises upon the circumstances to take the case out of the general rule, that an unexecuted accord cannot be treated as a satisfaction.

The order should be affirmed. All concur.

Order affirmed.