Whether the sum due is certain or uncertain, the consideration for the promise to forego the residue of the debt must be executed. It is not enough that the parties are agreed. Their agreement must be carried out if it is to be an answer to the original cause of action. Where it has been carried out, it is an accord and satisfaction. Where it has not been carried out it is an accord executory. As said in an old case: "Accord executed is satisfaction; accord executory is only substituting one cause of action in the room of another, which might go on to any extent." 42 This is a subject, however, which relates to the discharge of contract.43
A composition with creditors, whereby each creditor agrees to receive a certain proportion of the sum due him, seems, at first thought, to be an infraction of the rule that part payment of a debt is no discharge unless there is some consideration in addition to the part payment for the promise to forego the residue. The promise of the debtor to pay, or payment by him, of a portion of the debt, is not the consideration for the promises of the creditors to forego the balance.44 The consideration must be and is something more than this.
In a leading English.case Parke, J., said: "Here each creditor entered into a new agreement with the defendant [the debtor], the consideration of which, to the creditor, was the forbearance by all the other creditors who were parties, to insist upon their claims."45 The view that the promise of each creditor is sustained by the consideration moving from the others has been frequently approved.46 It has, however, met with criticism on the ground that the debtor, being a stranger to the consideration, cannot enforce such a contract.47 Sir William Anson finds consideration moving from the debtor in his procurement of the promise by the other creditors to forbear.48 On one ground or another such agreements are universally sustained.48
41 Truax v. Miller, 48 Minn. 62, 50 N. W. 935; Sisson v. City of Baltimore, 51 Md. 83; Ogborn v. Hoffman, 52 Ind. 439; McCall v. Nave, 52 Miss. 491; Union Pac. R. Co. v. Anderson, 11 Colo. 293, 18 Pac. 24; Perkins v. Headley, 49 Mo. App. 556; Gates v. Steele, 58 Conn. 316, 20 Atl. 474. 18 Am. St Rep. 268; Battle v. McArthur (C. C.) 49 Fed. 715; Northern Liberty Market Co. v. Kelly, 113 U. S. 199, 5 Sup. Ct. 422, 28 L. Ed. 948; Slade v. Elevator Co., 39 Neb. 600, 58 N. W. 191; Town of Brandon v. Jackson, 74 Vt. 78, 52 Atl. 114; Dunbar v. Dunbar, 180 Mass. 170, 62 N. E. 248, 94 Am. St. Rep. 623. See "Contracts," Dec. Dig. (Key-No.) § 68; Cent. Dig. §§ 328-380.
42 Lynn v. Bruce, 2 H. Bl. 319. See "Accord and Satisfaction," Dec. Dig. (Key-No.) § 16; Cent. Dig. §§ 116-122.
43 Post, p. 615.
44 Fitch v. Sutton, 5 East, 230. See "Compositions with Creditors," Dec. Dig. (Key-No.) § 8; Cent. Dig. § 8.
45 Good v. Cheesman, 2 Barn. & Adol. 335. See "Compositions with Creditors," Dec. Dig. (Key-No.) § 8; Cent. Dig. § 8.
77. IMPOSSIBLE PROMISE. A promise to do something which is either impossible in law, or physically impossible, is no consideration. The thing must be impossible on its face; not merely improbable, or impossible to the promisor.
78. VAGUE PROMISE. A promise which is so vague and indefinite as to be incapable of enforcement is no consideration.