Patrick v. Petty

STONE, C. J. There were several rulings in this case which render a reversal necessary, but we do not propose to consider them in detail. We will declare the principles governing the questions raised, which will furnish a sufficient guide on another trial. Set-off, in its nature, is a cross action, and is governed by the rules which pertain to a suit on a moneyed demand. There are exceptions, one of which is, that the statute of limitations is no defense to such plea, or cross action, where the claim offered to be set off “was a legal subsisting claim at the time the right of action accrued to the plaintiff on the claim in suit.” — Code of 1886, § 2682; Washington v. Timberlake, 74 Ala. 259. This statute, however, is confined to the statute of limitations in its express terms, and can not be extended further. Non-claim does not fall within its healing provisions. On the contrary, the defense of non-claim, as a bar to an independent demand pleaded as a set-off, is as complete, as if it were interposed to a separate action brought for the recovery of such demand.—Jones v. Drewry, 73 Ala. 311; 3 Brick. Dig. 473, § 292; Bell v. Andrews, 34 Ala. 538. When there is a promissory note, or other written obligation to pay money, and contemporaneously there is an or'al agreement that the obligation is to be discharged by the doing of something other than the payment of money, so long as the contemporaneous, oral agreement remains executory, it is wholly inoperative, and no defense whatever to a suit on the obligation. When, however, the collateral, oral agreement has been performed, it becomes a complete cancellation and discharge of the written obligation, and a defense to an action brought to recover money. This is payment, not in money, but in something else, agreed to be received, and received as a substitute for money. — McNair v. Cooper, 4 Ala. 660; Bishop on Contracts, chap. 56, beginning with § 1441. This defense is frequently called accord and satisfaction. But, whether treated as payment, or accord and satisfaction, it is not required to be presented to the administrator, and non-claim is no answer to it. It is urged that the defense of accord and satisfaction, set up in this case, was rested on an entire contract, and, not being fully performed, it stands for nothing. Givhan v. Dailey, 4 Ala. 336, is relied on in support of this proposition. The rule declared in that case was always regarded as [424] severe, and. it has been changed by statute. — Code of 1876, § 2922; Dryer v. Lewis, 59 Ala. 551. We consider the oral contract set up in defense, if believed as stated by the witness, as amounting to nothing more nor less than that to board and care for the intestate through the year 1884, was mutually agreed to be the equivalent of the amount secured by the note; and if performed in part, and full performance prevented only by the death of Mrs. Yeargin, then it was payment, or accord and satisfaction, pro tanto, but only pro tanto. The tendency of modern jurisprudence is to soften the severity of arbitrary rules which work injustice. — Bishop Contr. §§ 1283, 1346, 1421. Reversed and remanded.