Another sufficient defence is accord and satisfaction; which is substantially another agreement between the parties in satisfaction and in some under Insurance, this question of contributory negligence has arisen. For recent cases in which it is considered, see Memphis, etc. R. R. Co. v. Blakeney, 48 Miss. 218; Chicago, etc. R. R. Co. v. Pondrom, 6 Ill. 333; Keating v. Central R. R. Co. 3 Lansing, 469; Baltimore, etc. R. R. Co. v. State, 88 Md. 542; Van Shaick v. Hudson River R. R. Co. 48 N. Y. 627. In this case the negligence of the defendant sufficed to defeat the action. In the other cases cited in this note, It was insufficient, and also in Schneider v. The Provident Life Ins. Co. 24 Wis. 28; Transportation Co. v. Downer. 11 Wallace, 129; Kesee v. Chicago & N. W. R. R. Co. 30 la. 78.
(dg) So stated in some of the cases in preceding note, and in Pfau v. Reynolds, 53 Ill. 212; Chaffee v. Boston, etc. R. R. Co. 104 Mass. 108; Lynch v. 8mith, 104 Mass. 52; Mahoney v. Metropolitan R. R. Co. 104 Mass. 73.
(dh) I. & C. R. R. v. Rutherford, 29 Ind. 82.
(di) Todd v. Old Colony R. R. Co. 8 Allen, 18.
(dj) Holhrook v. U. & S. R. R. Co. 12 N. Y. 286.
(dk) Pittsburg, etc. R. R. Co. v. McClurg, 56 Penn. 294.
(dl) 8pencer v. Milwaukee, etc. R R. Co. 17 Wis. 487.
(dm) Pondrom v. Ch. & A. R. R. Co. 51 Ill.383.
of the former one; and also an execution of the latter agreement This is the meaning of the ancient rule, that accord without satisfaction is no bar to an action; and it used to be laid down in the earlier books with great exactness, that the execution of the accord must be complete and perfect. (e) 1 So, indeed, it must be now, except where the new promise itself is, by the accord or agreement, the satisfaction for the debt or broken contract. The party holding the claim may agree to take a new promise of the other in satisfaction of it; or he may agree to receive a new undertaking when the same shall be executed, as a satisfaction. In either case he will be held to his bargain, and only to that. (f) 2 Whether the new promise * shall have by itself
(e) Cock v. Honychurch, T. Raym. 203, 2 Keble, 600. Trespass for an assault. Plea, a concord between the parties, that the defendant should pay plaintiff £3, and his attorney's bill, and that he had paid the £3, and was ready to pay the attorney's bill, but he never showed him any. This was held no defence, because the accord was not wholly executed. See also Peytoe's case, 9 Rep. 79 b; Anonymous, Cro. Eliz. 46; Case v. Barber, T. Raym. 450, T. Jones, 158; Bree v. Sayler, 2 Keble, 382; Hall v. Seabright, 2 Keble, 534; Brown v. Wade, 2 Keble, 851; Frentress v. Markle, 2 la. 553; Coit v. Houston, 3 Johns. Cas. 243; Watkinson v. Inglesby, 5 Johns. 386; Frost v. Johnson, 8 Ohio, 393; Woodruff v. Dobbins, 7 Blackf. 582; Ballard v. Noaks, 2 Pike, 45; Brooklyn Bank v. De Grauw, 23 Wend. 342; Bryant v. Proctor, 14 B. Mon. 457; Bigelow v. Baldwin, 1 Gray, 245.
(f) Babcock v. Hawkins, 23 Vt. 561. This was an action of book account. It appeared, that after the commencement of the suit, the parties met, and the defendant agreed to give a note for thirty dollars to the plaintiff, and pay all the plaintiffs costs in the suit, except the writ and service. The defendant executed the note, and agreed to pay the costs, as above stated; and the plaintiff then executed and delivered to him a receipt in these words : "Received of Peter Hawkins thirty dollars by note given per this date, in full to settle all book accounts up to this date;" and the suit, as well as the subject-matter of the suit, was considered as settled by the parties. The defendant never paid any portion of the costs, but paid part of the note; and for the reason that the defendant had not paid the costs, the plaintiff refused to discontinue the suit. Upon these facts, found by an auditor, the county court rendered judgment for the defendant, which was affirmed by the Supreme Court. Redfield, J., in delivering the opinion of the court, said: "We think it must be regarded as fully settled, that an agreement upon sufficient consideration, fully executed, so as to have operated in the minds of the parties, as a full satisfaction and settlement of a pre-existing contract or account between the parties, is to be regarded as a valid settlement, whether the new contract be ever paid or not; and that the party is bound to sue upon the new contract, if such were the agreement of the parties. This is certainly the common understanding of the matter. It is reasonable, and we think it is in accordance with the strictest principles of technical law. 1. There is no want of consideration in any such case, where one contract is substituted for another, and especially so where the amount due upon the former contract or account is matter of dispute. The liquidating a disputed claim is always a sufficient consideration for a new promise. Holcomb v. Stimpson, 8 Vt. 141. 2. The accord is sufficiently executed, when all is done which the party agrees to accept in satisfaction of the pre-existing obligation. This is ordinarily a matter of intention, and should be evidenced by some express agreement to that effect, or by some unequivocal act evidencing such a purpose. This may be done by surrender of former securities, by release or receipt in full, or in any other mode. All that is the effect of satisfying the original claim, must be determined by the construction of the new agreement. * Gen erally, but not universally, if the new promise be founded upon a new consideration, and is clearly binding on the original promisor, this is a satisfaction of the former claim; (g) and otherwise it is no satisfaction. (h) But even a promise, which would requisite is, that the debtor should have executed the new contract to that point whence it was to operate as satisfaction of the pre-existing liability, in the present tense. That is shown in the present case by executing a receipt in full, the same as if the old contract had been upon note, or bill, and the papers have been surrendered. 3. In every case where one security or contract is agreed to be received in lieu of another, whether the substituted contract be of the same or a higher grade, the action, in case of failure to perform, must be upon the substituted contract. And in the present case, as it is obvious to us that the plaintiffs agreed to accept the note, and the defendant's promise to pay the costs in full satisfaction, and in the place of the former liability, the defendant remained liable only upon the new contract. 4. In all cases where the party intends to retain his former remedy, he will neither surrender nor release it; and whether the party shall be permitted to sue upon his original contract is matter of intention always; unless the new contract be of a higher grade of contract, in which case it will always merge the former contract, notwithstanding the agreement of the debtor to still remain liable upon the original contract." See in Com. Dig. tit Accord (B 4), it is said that "an accord, with mutual promises to perform, is good; though the thing be not performed at the time of the action, for the party has a remedy to compel the performance. Yet the remedy ought to be such that the party might have taken it upon the mutual promise at the time of the agreement." And in Sard v. Rhodes, 1 M. & W. 153, which was assumpsit bythe indorsee against the acceptor of a bill of exchange for £4.% the defendant pleaded that, after the bill became due, one G. P., the drawer of the bill, made his promissory note for £44, and delivered the same to the plaintiff in full satisfaction and discharge of the bill. Replication, that although he, the plaintiff, accepted the note in full satisfaction and discharge of the bill, yet that the note was not paid when due, and still remained unpaid. Held, that the replication was bad. and that the plaintiff, having accepted the note in full satisfaction and discharge of the bill, could not sue upon the latter. Held, also, that the plea was sufficient. And see to the same effect Good v. Cheeseman, 2 B. & Ad. 328; Evans v. Powis, 1 Exch. 601. But the rule established by these cases has made no material change in the form of the plea. It is still true that an accord without satisfaction is not good. Therefore if a defendant intends to set up a new promise without performance in bar of an action, he must take care to aver distinctly that it was agreed that the new promise should be received in satisfaction. If he sets forth the agreement in such a manner that it appears upon the face of the plea that performance, and not the promise to perform, was to be received in satisfaction, and does not aver performance, the plea will of course be bad. This will explain several recent English cases which might seem at first sight to be at variance with what is stated in the text. See Reeves v. Hearne, 1 M. & W. 323; Collingbourne v. Mantell, 5 M. & W. 289; Carter v. Wormald, 1 Exch. 81; Gifford v. Whitaker, 6 Q. B. 240; Griffiths v. Owen, 18 M. & W. 58; Harris v. Reynolds, 7 Q. B. 71; Gabriel v. Dresser, 6 C. B. 622, 29 Eng. L. & Eq. 266; Bayley v. Homan, 3 Bing. N. C. 920; James v. David, 6 T. R. 141; Allies v. Probyn, 5 Tyrwh. 1079; Hall v. Smith, 15 la. 684.