Woodward v. Miles

Bell, J. In the case of Edgerly v. Emerson, 3 Foster's Rep. 555, it was held that receipts may be varied, explained, or contradicted by oral testimony. The same rule was adopted by this court in Wallace v. Rogers, 2 N. H. Rep. 506. The principal question in the case is, whether the new agreement between the parties, that the defendant should pay and the plaintiff should receive the two thousand feet of- clapboards in payment of the three items of the account now in suit, discharged that account. Such an agreement can only operate to discharge the original cause of action, as an accord and satisfaction. The general rule laid down in the books is, that there must be not only an accord, but a satisfaction. An accord not executed is no bar to the original claim. Coit v. Huston, 3 Johns. Ca. 243; Watkinson v. Inglesby, 5 Johns. 386; Russell v. Lytte, 6 Wend. 390; Bank v. Degraw 23 Wend. 342; Peytoe’s Case, 9 Co. 79; Walker v. Seaborn, 1 Taun. 526; Fitch v. Sutton, 5 East 280; Tuckerman v. Newhall, 17 Mass. 581; 1 Com. Dig., Accord, B, 4. If the agreement in this case had been executed by the delivery and acceptance of the clapboards, it would have been a [294] bar to this action; but so long, as tbe new agreement is unexecuted, tbe original contract remains in force. An agreement to make a new contract, and that the new contract shall be accepted in satisfaction of the original one, if carried into effect, is an accord executed, and discharges the original cause of action, whether the new contract is ever performed or not. Watkinson v. Inglesby, before cited; Eaton v. Lincoln, 13 Mass. 424; Seaman v. Haskins, 2 Johns. Ca. 195; Heaton v. Angier, 7 N. H. Rep. 397. But there is no presumption of law, that where parties make a new contract the creditor Shall receive his pay at a different time, or place, or in a different way from that originally stipulated; that the parties agree to accept the new contract in discharge of the old. The party who alleges such agreement for the discharge of the old debt is bound to prove a distinct agreement to that effect. This question has most frequently arisen in cases where promissory notes or acceptances have been given for antecedent debts. And it is clear, that at common law the acceptance of a note or bill for the amount of a debt, is no discharge of that debt, unless it is so expressly agreed. Wright v. Crockery Co., 1 N. H. Rep. 281; Elliot v. Sleeper, 2 N. H. Rep. 527; Jaffrey v. Cornish, 10 N. H. Rep. 505, where the cases are collected; Tobey v. Barber, 5 Johns. 68; Johnson v. Weed, 9 Johns. 310; Bill v. Porter, 9 Conn. 23; Porter v. Talcutt, 1 Cow. 359; Hayes v. Stone, 7 Hill 128. In some of the States it is held otherwise. In the present case it was not contended that there was any distinct evidence tending to show that the parties agreed that the new contract should be accepted in satisfaction and discharge of the old contract. If such evidence had been deemed by the defendant to exist, he might have requested the verdict of the jury upon that point, and the question would, of course, have-been submitted to them. Willard v. Germar, 1 Sand. S. C. 50; Bremer v. Herr, 8 Barr 106. Instead of this, the court was desired to rule upon the question as a matter of law, and the decision was in accordance with the decisions of this court. [295] It is suggested that part payment of the clapboards having been made, the plaintiff could not recover upon his original account; but we are unable to see how this can affect the question. An accord must be entirely executed to be a defence, and if the new contract was itself accepted in discharge, it is immaterial whether it was executed or not. We are of opinion, therefore, that there must be Judgment on the verdict.