Kromer v. Heim.

KROMER V. HEIM.

(75 N. Y. 574.)

Accord and satisfaction — part execution and tender of residue.

An accord must be completely executed to sustain a plea of accord and satisfaction; part execution and tender of performance of the residue is insufficient.

OTION by defendant to set aside an execution, and have the judgment satisfied of record. The judgment was obtained June 24, 1876, for $4,334.08. On July 26, 1876, pending a stay of execution, plaintiff's attorney executed and delivered to defendant a written stipulation, to accept, in settlement, if paid within a year, $3,000 in cash, and an assignment of certain patent rights and interests of defendant, or $1,000 in money, $250 down and the balance in installments, and merchandise in amounts stated, sufficient, with the cash payments, to reduce the judgment to $1,000, and an assignment of said patent interests. Defendant paid the $250 down, and made the other cash payments and deliveries of merchandise until the judgment was reduced to less than $1,000, which were received by plaintiff without objection. Defendant then tendered to plaintiff an assignment of the patent interests as required, which plaintiff declined to accept. The motion was denied.

D. M. Porter, for appellant. The contract of settlement was valid. Bigelow v. Benedict, 70 N. Y. 202; S. C., 26 Am. Rep. 573; Story v. Salmon, Ct. of App. MS.; Justice v. Lang, 42 N. Y. 493; S. C., 1 Am. Rep. 576; Argus Co. v. Mayor, 55 id. 495. The acceptance of part performance, pursuant to the proposition, made the contract valid. Allis v. Read, 45 N. Y. 142; Allis v. Read, id. 143; Dent v. North Am. S. S. Co., 49 id. 391; Bissell v. Balcom, 39 id. 284; Osborn v. Gantz, 60 id. 540; Gaylord Mnfg. Co. v. Allen, 53 id. 515. On the facts proved the judgment was fully paid. Eaves v. Henderson, 17 Wend. 190; Davis v. Spencer, 24 N. Y. 386, 391, 392; Hartley v. Tatham, 1 Robt. 246; 2 Abb. Ct. App. Dec. 333. Upon part performance by appellant the agreement could be enforced against him. McKnight v. Dunlop, 1 Seld. 537; Garfield v. Paris, U. S. Sup. Ct., 17 Alb. Law J. 467; Morton v. Tibbett, 15

Kromer v. Heim.

Ad. & El. (N. S.) 434. The delivery of property, even of the smallest value, would be good as an accord and satisfaction. Sibree v. Tripp, 15 M. & W. 23-25, 35–38; 2 Pars. on Cont. (5th ed.) 618, 619, n. z.; Smith v. Brown, 3 Hawks, 580; Christie v. Craige, 20 Penn. 430; Grocers' Bk. of N. Y. v. Fitch, 1 Thomp. & Co. 651; 58 N. Y. 623; Howard v. Norton, 65 Barb. 161; Philips v. Berger, 2 id. 608; Kellogg v. Richards, 14 Wend. 116; Steinman v. Magnus, 2 Camp. 124; Legh v. Lewis, 1 East, 390; Comyn's Dig., "Accord," b. 2; 2 Rol. 96; Boyd v. Hitchcock, 20 Johns. 76-78; Brooks v. White, 2 Metc. 283; Henderson v. Moore, 5 Cranch, 11; Worthington v. Wigley, 3 Bing. (N. C.) 454; Good v. Cheeseman, 2 B. & Ad. 328; Lynn v. Bruce, 2 H. Bl. 317; Lyth v. Ault, 7 Exch. 669; Jones v. Bullett, 2 Litt. 49; Blinn v. Chester, 5 Dey, 359; Curlewis v. Clark, 3 Exch. 375; Peytoe's Case, 5 Rep. 117; Andrew v. Boughay, Dyer, 756; Watkinson v. Inglesby, 5 Johns. 385; Pars. on Cont. (5th ed.) 683, n. 12; Musgrove v. Gibbs, 1 Dall. 216; Coit v. Houston, 3 Johns, Cas. 243; Payne v. Barnet, 2 Marsh, 312.

J. W. Feeter, for respondent.

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. Accord and Satisfaction, A; Cock v. Honeychurch, 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 Strobh. 126; Pars. on Cont. 683, note.

Kromer v. Heim.

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 com position agreement was still executory. Good v. Cheeseman, 2 B. & 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; Brooklyn Bank v. De Grauw, 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 $3,000 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 $4,334.08, or to accept $1,000 in cash, in installments, and the balance in merchandise, until the judgment should be reduced to $1,000, 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 $1,000, and supplied the merchandise, until the debt was reduced to $1,000, 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

De Lavallette v. Wendt.

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.

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 $3,000 in cash, and assign the patent interests, or to pay $3,334.08 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 $3,334.08 in merchandise, to paying $3,000 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.

An instrument in this form: "Received of A $500 due on demand," is open to paroi explanation of its consideration, to show that it was intended as a mere receipt.

In an action for breach of a contract to hire rooms for a certain time at an agreed price, interest must be awarded upon the recovery, as matter of law. (See note, p. 498.)

A

CTION of damages for breach of a contract between plaintiff and David M. Peyser, defendant's testator, by which Peyser agreed to hire rooms in plaintiff's hotel from September 1, 1866, to May 1, 1867, at sixty-two dollars and fifty cents per week up to November 1, 1866, and $150 per week after that time.

De Lavallette v. Wendt.

Defendant's answer set up a counter-claim on an instrument, of which the following is a copy:

“$500.00.

NEW YORK, November 3, '66.

Due on

"Received from D. M. Peyser five hundred dollars.

demand.

"A. M. DE LAVALLETTE."

Plaintiff pleaded the statute of limitations.

Peyser left plaintiff's hotel November 23, 1866. He paid for the rooms up to November seventh. Plaintiff's evidence tended to show that $500 of such payment was made November 3, 1866; that no other sum was received by him from Peyser on that date, and that the instrument was intended as a receipt. On December 21, 1866, plaintiff let the rooms to another for $125 per week.

Defendant's counsel requested the court to charge that the legal effect of the instrument was an acknowledgment by the plaintiff that she owed the testator $500, due to him on demand; and that parol evidence was not admissible to vary its effect. The court. declined so to charge.

The court charged that the plaintiff was entitled to recover, if at all, $1,841.48 ($150 per week for the time the rooms were vacant, and twenty-five dollars per week-the difference between what Peyser agreed to pay and what plaintiff let the rooms for from December 21, 1866, to May 1, 1867), with interest on the aggregate sum from May first to the time of trial. The plaintiff had judgment below. This was modified by the general term by deducting $868.28, stated to be the amount of the damages allowed for the time the rooms were vacant, with the interest thereon.

Further facts appear in the opinion.

Charles Wehle, for appellant.

Interest on the amount of the claim

could only be allowed from the commencement of the action. Mc Cul lom v. Seward, 62 N. Y. 318. It was error to allow any interest. Sedg. on Dam. (6th ed.) 377-380; Holmes v. Rankin, 17 Barb. 454; Salter v. Parkhurst, 2 Daly, 240; Esterly v. Coe, 1 Barb. 235; 3 N. Y. 502. The judge properly held that the meaning of the contract was a question of law. 2 Pars. on Con. 255, 492; Engleston 7. Knickerbacker, 6 Barb. 466 2 C. & H. Notes, 1439; Tisloe v. Graeter