An accord and satisfaction is an agreement, which need not be under seal, the effect of which is to discharge the right of action possessed by one of the parties against the other. In order to have this effect, there must be a consideration for the promise of the party entitled to sue. It is further necessary that the accord shall be executed; otherwise the agreement is an accord without a satisfaction.64 The promisor must have obtained what he bargained for in lieu of his right of action, and he must have obtained something more than a mere fresh arrangement as to the payment or discharge of the existing liability.65 It is not meant by this that a promise can never be received as a satisfaction. If the promise and not its performance is accepted in satisfaction, it is a good accord and satisfaction without performance. In other words, a new contract agreed upon, and accepted, as a satisfaction, operates as an accord and satisfaction.66 The satisfaction may consist in the acquisition of a new right against the debtor, as the receipt from him of a negotiable instrument in lieu of payment;67 or of new rights against the debtor and third persons, as in the case of a composition with creditors;68 or of something different in kind from that which the debtor was bound by the original contract to perform;69 but it must have been taken by the creditor as satisfaction for his claim in order to operate as a valid discharge. There can be no satisfaction without accord or agreement to that effect.70

Md. G7, 42 Am. Rep. 322; Kidder v. Kidder, 33 Pa. 268. See "Release," Dec. Dig. (Key-No.) § 1; Cent. Dig. §§ 5-11.

62 34 Cyc. 1045, 1046, 104S, et seq.

63 See Pacific Mutual Ins. Co. v. Webb, 157 Fed. 155. 84 C. C. A. 603, 13 Ann. Cas. 752. See "Release," Dec. Dig. (Key-No.) §§ 16-20; Cent. Dig. §§ 31-38.

64 Bayley v. Homan, 3 Bing. (N. C.) 915: Lynn v. Bruce, 2 H. Bl. 317; Kro-mer v. Heim, 75 N. T. 574, 31 Am. Eep. 491; Hosier v. Hursh, 151 Pa. 415, 25 Atl. 52; Costello v. Cady, 102 Mass. 140; Petty v. Allen, 134 Mass. 265; Flack v. Garland, 8 Md. 1S8; Simmons v. Clark, 56 I11. 96; Pettis v. Ray, 12 R. I. 344; Hoxsie v. Lumber Co., 41 Minn. 548, 43 N. W. 476; Schlitz v. . Meyer, 61 Wis. 418, 21 N. W. 243; Cobb v. Malone, 86 Ala. 571, 6 South. 6; Ogilvie v. Hallam, 58 Iowa, 714, 12 N. W. 730; Browning v. Crouse, 43 Mich. 489, 5 N. W. 664; Troutman v. Lucas, 63 Ga. 466; Frost v. Johnson, 8 Ohio, 393; Simmons v. Hamilton, 56 Cal. 493; Johnson's Adm'r v. Hunt. 81 Ky. 321; Hemingway v. Stansell, 106 U. S. 399, 1 Sup. Ct. 473, 27 L. Ed. 245; Yazoo & M. V. R. Co. v. Fulton, 71 Miss. 385, 14 South. 271; Welch v. Miller, 70 Vt. 108, 39 Atl. 749. In HARRISON v. HENDERSON, 67 Kan. 194, 72 Pac. 875, 62 L. R. A. 760, 100 Am. St. Rep. 3S6, Throckmorton Cas. Contracts, 418, it is said, per Cunningham, J.: "An accord is an agreement, an adjustment, a settlement of former difficulty, and presupposes a difference, a disagreement, as to what is right. A satisfaction, in its legal significance in this connection, is a performance of the terms of the accord." See "Accord and Satisfaction," Dec. Dig. (Key-No.) § 1; Cent. Dig. §§ 1-13.

65 McManus v. Bank, L. R. 5 Exch. 65. See "Accord and Satisfaction" Dec. Dig. (Key-No.) § 5; Cent. Dig. §§ 40-45).

As we have seen, a part payment of a liquidated debt does not constitute a discharge of the entire debt, even though it is accepted as such by the creditor, unless it is accompanied by a release under seal or by a new consideration.71 Where, however, the debt is unliquidated or the amount is in dispute, a payment of a less amount than the sum claimed on condition that it be accepted in full discharge of the debt constitutes an accord and satisfaction.72 In this case the act of the creditor in accepting payment constitutes evidence of his assent to the terms on which it is tendered.73 But if the payment is to constitute a satisfaction it must appear that it was so understood by the creditor at the time it was received by him.74 A simple tender of a balance as the amount in good faith believed by the debtor to be due "does not carry with it an implication or conclusion that by such tender the debtor paid, or that the creditor agreed to receive, the same in full of the amount due, where there had been no prior disagreement or discussion as to what was actually due." 75

66 Babcock v. Hawkins, 23 Vt. 561; Morehouse v. Bank, 98 N. Y. 503; Whitney v. Cook, 53 Miss. 551; Jones v. Perkins, 29 Miss. 139, 64 Am. Dec. 136; Heirn v. Carron, 11 Smedes & M. (Miss.) 361, 49 Am. Dec. 65; Christie v. Craige, 20 Pa. 430; Bradshaw v. Davis, 12 Tex. 336; Bennett v. Hill, 14 R. I. 322; Schweider v. Lang, 29 Minn. 254, 13 N. W. 33, 43 Am. Rep. 202; Sioux City Stock-Yards Co. v. Packing Co., 110 Iowa, 396, 81 N. W. 712. See "Accord and Satisfaction;' Dec. Dig. (Key-No.) § 19; Cent. Dig. §§ 136-139.

67 Goddard v. O'Brien. 9 Q. B. Div. 37; Witherby v. Mann, 11 Johns. (N. Y.) 518; Guild v. Butler, 127 Mass. 386; Varney v. Conery, 77 Me. 527, 1 Atl. 683; Yates v. Valentine, 71 I11. 643; Mason v. Campbell, 27 Minn. 54, 6 N. W. 405. See "Accord and Satisfaction," Dec. Dig. (Key-No.) § 5; Cent. Dig. §§ 40-45.

68 Ante, p. 165. 69 Ante, p. 163.

70 Preston v. Grant, 34 Vt. 201; Boston Rubber Co. v. Wringer Co., 58 Vt. 551, 5 Atl. 407. See "Accord and Satisfaction," Dec. Dig. (Key-No.) § 16; Cent. Dig. §§ 116-122.

71 Ante, pp. 161-164.

72 Nassoiy v. Tomlinson, 148 N. Y. 326, 42 N. E. 715, 51 Am. St. Rep. 695. See "Accord and Satisfaction;' Dec. Dig. (Key-No.) § 10; Cent. Dig. §§

61-74.

73 In England, the question as to whether there has been an accord and satisfaction is one of fact, and the mere circumstance that the creditor has kept money or a check tendered in full payment of an unliquidated demand does not raise a conclusive presumption that it has been accepted in full satisfaction. Day v. McLea, 22 Q. B. Div. 610. To the same effect, see Tompkins v. Hill, 145 Mass. 379, 14 N. E. 177. The American cases, however, generally hold, anomalously, that in such case an accord and satisfaction results, even though the creditor insists that the payment is accepted merely

We have already fully considered the question of the sufficiency of the consideration.76