Capital City Mutual Fire Insurance v. Detwiler

McAllister, J. The plaintiff below must, under the pleadings in the case, be taken as bound upon the trial to the theory and position that there had been a breach by the defendant of the contract of hiring set out in his special count prior to the time of entry into the new agreement of compromise set ont in defendant’s special pleas of accord and satisfaction. That being the case, then, although the former agreement was under seal =and the latter not, yet as to the consequences of a breach of such sealed agreement of hiring, it was entirely competent for the parties to so deal with them by parol as to waive or release any cause of action arising from such breach. Delacroix v. Bulkley, 13 Wend. 71. It is a general rule that where the amount of a debt is fixed and certain, or capable of being reduced to certainty by computation, the payment of a part of such debt can not have the effect of an accord and satisfaction without a release under seal. But where the amount or debt is unascertained and not fixed or certain, as in this case, the rule is otherwise, and the payment and acceptance in satisfaction of a Jess sum will support a plea of accord and satisfaction. Palmerton v. Huxford, 4 Den. 166; Mathias v. Bryson, 4 Jones (N. C. Law) 508; Cool v. Stone, 4 Iowa, 218; McDaniels v. Lapham, 21 Vt. 222; Taylor v. Nussbaum, 2 Duer, 302; Harris v. Story, 2 E. D. Smith, 363; Neary v. Bostwick, 2 Hilt. 514. There was, therefore, no insuperable legal difficulty in the way of maintaining the defense of accord and satisfaction, or of account stated and payment. The plaintiff was in no position to overthrow that defense on tlie ground of fraud or mistake, because tliere was no replication to that effect. Indeed the replication which was filed did not traverse the averment of the pleas of the plaintiff having accepted the new agreement set out in the pleas and the money payable thereunder in full satisfaction of the several sums claimed in the declaration. That averment was traversable, and it is an old and well settled rule of .pleading that whatever is traversable, and not traversed, is admitted. 7 Bac. Abr., Tit. Pl., H, 4; Hudson v. Jones, 1 Salk. 91. Gould says; “Each party tacitly admits all such traversable allegations on the opposite side, as he does not traverse. For as each party is allowed to deny in some form (either by a general or precise traverse) all material facts alleged against him, the omission by either party to traverse any such alleged by Ms adversary, is justly considered as an admission of it33 Again he says; “ Whatever has been admitted on both sides, in the pleadings, can not he contradicted in the subsequent pleadings, or even by the verdict.. For neither party can refract what he has before conceded on the record, and the jury have no authority to find any other facts than such as are put in issue.” Gould on Pleading, Secs. 167, 168, Chap. 3. We are of opinion that, as the case stood upon the pleadings and evidence, the defense, of accord and satisfaction was established and the plaintiff was in no position to avoid it on the ground of fraud, he having replied, no such matter. The judgment of the court below will, therefore, be reversed and the cause remanded. Judgment reversed.