Merry v. Allen

Miller, Oh. J. 1. accord and satisfaction. I. It is insisted by appellant’s counsel, that the defendant lias undertaken to plead an accord and satisfac^on *n bar ^ plaintiff’s action, but that lie fap[s aqege fuii performance on his part. At the common law it is well settled, that an accord without satisfaction is no bar to a suit on the original obligation. If, however, the accord be founded upon a new consideration, and accepted as satisfaction, it operates as such and will take away the remedy upon the old contract. See Hall v. Smith, 15 Iowa, 584, and authorities cited. 2 _.■ oon_ tract:remedy, In the case before us the new agreement pleaded in the answer is not properly an accord. It is rather in the nature of a rescission of a former contract, and the substitution therefor of a new and different one, based upon a new consideration. The original contract was for the sale to the defendant of certain real and personal property fora consideration in money, to be paid to the plaintiff. The new agreement stipulates for the rescission of the former contract; a re-conveyance by the defendant of most of the land and personal property purchased under the first contract, the delivery up of the notes made by defendant to plaintiff, and various other stipulations on part of each of the parties. This new agreement being based upon a new consideration, if accepted by the plaintiff as a compromise of, or in substitution for, the indebtedness of the defendant under the original contract would have the effect to take away any right of action which the plaintiff previously had on the first contract. There was, therefore, no error in the refusal of the court to give the instructions asked by the plaintiff touching this question. The court properly left it to the jury to determine whether this new agreement was entered into by the parties. In other words, whether this agreement or the one alleged by the plaintiff was the actual contract made by the parties, and accepted by plaintiff as a comju’omise of the defendant's indebtedness to her. ,- II. It is insisted that the verdict is not sustained by sufficient evidence. [239] 3__._. performance, [238] Upon appellant’s theory of the law, that it was necessary [239] for the defendant to show a full and complete performance on Ins part of the new agreement, it 'is possible ^g vercLiot could not be upheld. But, in the view we have taken of the case, it was only necessary that the defendant should show that this new agreement was entered into by the parties. In other words, that he should show the making of the agreement by both parties. By its terms it purports to be for the compromise of an indebtedness from the defendant to the plaintiff, and the substitution of a new contract upon a new consideration extinguishing such indebtedness. It was not required of the defendant that he should show that he had fully performed on his part the new agreement. The defense was complete by proving the making and acceptance of the new contract. That the evidence was sufficient to warrant the jury in thus finding, we entertain no doubt. If the defendant has failed to comply with the new agreement, plaintiff’s remedy is on that agreement. The foregoing view fully disposes of the case, and relieves us from a discussion of the other questions presented by counsel for appellant, which in our opinion are not material. The judgment of the court below will be Aeeirmed.