DISTRICT OF ARKANSAS.
319
United States v. Conway.
pleaded, valid? I think not; for it is not averred that the accord was received and accepted in satisfaction of the contract sued on; but it is averred that performance of the new agreement was to operate as satisfaction. Full performance, as already remarked, is not alleged; and according to the best authorities, an executory agreement unperformed cannot be set up as a valid accord and satisfaction. 1 Bac. Abr. Accord and Satisfaction, A. 55; 1 Ld. Raym. 122; 6 Wend. 390; 16 Johns. 86; 2 H. Bl. Rep. 317; 5 T.R. 141.
The demurrer to the seventh and eighth amended pleas is sustained.
Demurrer sustained.[1]
- ↑ Performance of part and tender of performance of the residue is not a good plea. Lewis v. Shepherd, Ser. T. Jones, 6; 1 Bac. Abr. Accord (A) 59. If an accord be to do two things, and the defendant do one, and not the other, this is no bar to the action, because the plaintiff has no remedy for that which is not performed. 1 Bac. Abr. Accord (A.) 58; Roll. Abr. 129. The accord must be executed. 9 Co. 79, b; 1 Salk. 76; T. Raym. 450; 2 Keb. 332; 2 Johns. 158, 168; 7 Blackf. 582. Part payment and an agreement to take the residue at a future day cannot be pleaded as satisfaction in bar. Cro. Eliz. 304–306. To constitute a bar to the action, the accord must be full, complete, and executed. 6 Wend. 390; 16 Johns. 86; 3 Ib. Cas. 243; 5 N.H. Rep. 136, 410; 1 Com. (B. 4,) 201, title Accord. Bacon says: "Accord is an agreement between two persons, to give and accept something in satisfaction of a trespass, etc., done by one to the other. This agreement, when executed, may be pleaded in bar to an action for the trespass; for in all personal injuries, the law gives damages as an equivalent; and when the party accepts of an equivalent; there is no injury or cause of complaint, and therefore present satisfaction is a good plea; but if the wrongdoer only promise a future satisfaction, the injury continues till satisfaction is actually made, and consequently there is a cause of complaint in being; and if the trespass were barred by this plea, the plaintiff could have no remedy for the future satisfaction, for that supposes the injury to have continuance." 1 Bac. Abr. title Accord and Satisfaction, 54. If the defendant pleads a concord between himself and the plaintiff', that he should pay the plaintiff 3l. in hand, and should undertake to pay the plaintiff's attorney's bill, and avers that he had paid 3l., and was always ready to pay the attorney's bill, but he never showed him any; this is no good plea, because the accord is not shown to be fully executed. 1 Bac. Abr. 59; 3 Keb. 690; 1 Com. Dig. Accord, (B. 4). To make a plea good, both accord and satisfaction must be shown. 1 Wash. C.C. Rep. 328.
