2 Sard v. Rhodes, 1 M. & W. 153; Wiseman v. Lyman, 7 Mass. 286; Harris v. Johnston, 3 Cranch, 311. See also ante, § 1344, and cases cited. See supra.

"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.

"5. In every case of a valid contract, upon sufficient consideration to discharge a former contract in some new mode, the new contract supersedes the remedy for the time, until there has been a failure; and then the creditor may always, if he choose, sue upon the new contract. This is certainly the inclination of the more modern cases." See, also, Good v. Cheesman, 2 B. & Ad. 328; Evans v. Powis, 1 Exch. 601; Sard v. Rhodes, 1 M. & W. 153.

1 Holcomb v. Stimpson, 8 Yt. 141; Babcock v. Hawkins, 23 Ib. 561; Vedder v. Vedder, 1 Denio, 257.

2 Ibid.; Good v. Cheesman, 2 B. & Ad. 328; Cartwright v. Cooke, 3 Ib. 701; Bayley v. Homan, 3 Bing. N. C. 921; Pope v. Tunstall, 2 Pike, 209; Wentworth v. Bullen, 9 B. &. C. 850.

3 Hawley v. Foote, 19 Wend. 516. See ante, ch. xvi.; Lewis v. Lys-ter, 2 C, M. & R. 704; Brooks v. White, 2 Met. 283.

issory note or order was intended to be a full satisfaction of the claim.1 In all cases, however, the question whether it was so intended or not depends upon the circumstances of the case. The only rule that can be laid down is that if the new promise be taken in full payment of a debt, it is a good accord with satisfaction; if it be not so taken, it is not a good accord with satisfaction; and this is a question of fact for the jury.

§ 1356. Accord with satisfaction to one defendant is, in general, a bar to all;2 but an acceptance from one of two obligors, severally liable, of a smaller sum, in satisfaction of a larger, will not operate as a bar to an action against the other obligor.3 So, also, a payment to one of, joint plaintiffs of his part of the damages, is no bar to the other.4 But if full payment be made to one of several plaintiffs, it is sufficient, although no authority appear from the others to make the agreement.5 A fortiori, if, by agreement, each party be authorized to make or to accept payment in behalf of all, an acceptance or payment by one is conclusive. Thus, the acceptance of the negotiable note of one partner is a good satisfaction and discharge of the partnership debt.6 So an agreement by a partnership proposing, upon condition of a release from their indebtedness, to assign all their partnership effects to three of the creditors in trust for the others, on an acceptance of the proposal by the creditors, and an assignment by the partnership pursuant thereto, is good as an accord and satisfaction between the parties to it.1

1 Babcock v. Hawkins, 23 Vt. 561; Wheeler v. Schroeder, 4 R. L 383.

2 Com. Dig. Accord, A. 1; 2 Greenl. Evid. § 30; Strang v. Holmes, 7 Cow. 224; Barrett v. Third Av. Railroad Co., 45 N. Y. 628 (1871); Dufresne v. Hutchinson, 3 Taunt. 117. Payment of a sum of money " in full payment and satisfaction for all claim for damages and costs " in a suit against the Cambridge Water Works for an injury sustained by the plaintiff by falling into a trench dug by its servants in a public highway, is a bar to a subsequent action for the same injury against the town which was bound to keep the highway in repair. Brown v. Cambridge, 3 Allen, 474 (1862).

3 Field v. Robins, 8 Ad. & El. 91; Warren v. Skinner, 20 Conn. 559; Worthington v. Wigley, 3 Bing. N. C. 454; Smith v. Bartholomew, 1 Met. 276.

4 Clark v. Dinsmore, 5 N. H. 136.

5 Wallace v. Kelsall, 7 M. & W. 264; Crowe v. Lysaght, 12 Irish Com. Law, 481 (1861).

6 Story on Partnership, § 370; Thompson v. Percival, 5 B. & Ad. 925.

§ 1357. Whether an accord with an unaccepted tender of satisfaction be a sufficient defence, does not seem to be settled.2 If the accord be to accept a lesser sum than a debt in satisfaction of it, there must be an actual acceptance in order to constitute a defence to the debt, and a mere tender is insufficient.3 Thus, an agreement by creditors to accept five shillings and sixpence on the pound, in full satisfaction of their claims, was held to create no bar to an action for the full debt, there being no consideration to support the agreement. But where there is a sufficient consideration to support the agreement, it seems that a tender, though unaccepted, would be a bar to an action.4 So, also, where a different mode of payment from that received by the original claim, is substituted for it by agreement, a tender according to such agreement will be sufficient, if it appear to have been a complete satisfaction. Thus, where the holder of a promissory note agreed to accept payment in coats at a stipulated price, a tender of the coats, though refused, was considered as sufficient to bar an action on the note.5 So where the wife joins with her husband in executing a mortgage to secure the payment of the reduced amount, which the creditor agreed to accept in payment of the original demand, the pledge of her inchoate right of dower for such payment is sufficient to convert the transaction into an accord and satisfaction, by which the original claim is extinguished.1

1 Therasson v. Peterson, 2 Keyes, 636 (1866).

2 See 2 Greenleaf on Evidence, § 31; Bradley v. Gregory, 2 Camp. 383; Coit v. Houston, 3 Johns. Cas. 243; Russell v. Lytle, 6 Wend. 390; Hawley v. Foote, 19 Ib. 516; Allen v. Harris, 1 Ld. Raym. 122; James v. David, 5 T. R. 141; Gabriel v. Dresser, 15 C. B. 622; 29 Eng. Law & Eq. 268; Flockton v. Hall, 14 Q, B. 380.

3 Heathcote v. Crookshanks, 2 T. R. 24. So, also, Tassall v. Shane, Cro. Eliz. 193; Balston v. Baxter, Ib. 304; Lynn v. Bruce, 2 H. Black. 317; Clark v. Dinsmore, 5 N. H. 136.

4 Heathcote v. Crookshanks, 2 T. R. 24; Cartwright v. Cooke, 3 B. & Ad. 701; Coit v. Houston, 3 Johns. Cas. 243.

5 Coit v. Houston, 3 Johns. Cas. 243; James v. David, 5 T. R. 141; Hawley v. Foote, 19 Wend. 516. But see Russell v. Lytle, 6 Wend. 390.

§ 1358. In England, accord and satisfaction must be formally pleaded in all cases.2 But in this country it may be given in evidence under the general issue in assumpsit, and in actions on the case; but it must be specially pleaded in debt, covenant, and trespass.3 The plea of accord and satisfaction may be proved by lapse of time and the acquiescence of the parties; and the lapse of twenty years after damages sustained by a breach of covenant against incumbrances was held in one case to be a sufficient proof of the plea, unless rebutted by other evidence.4

1 Keeler v. Salisbury, 33 N. Y. 648 (1865).

2 Baillie v. Moore, 8 Q. B. 496; Weston v. Foster, 2 Bing. N. C. 693; 1 Chitt. on Plead. 418, 426, 429, 441. 3 Greenleaf on Evid. § 29. 4 Jenkins v. Hopkins, 9 Pick. 543.