43 Mich. 489 | Mich. | 1880
This suit is brought upon promissory notes. The notes, when introduced in evidence, had memoranda on their backs, showing that there had been a compromise between the parties for a settlement of the notes at
The ruling we think was right. The plaintiffs found it necessary to their case to explain the memoranda, and in doing so, they proved a compromise partly performed by defendant. The performance was by payments, received by them from time to time; and this showed either that it was a part of the agreement of compromise that payments should be thus made, or that if payment was to be made otherwise, the plaintiffs had waived strict compliance. But the plaintiffs gave no explanation further.
The case then was this: The plaintiffs proved the original contract, and they also proved that another had been conditionally, at least, substituted for it. Upon the new contract the parties to some extent had acted. The plaintiffs say the defendant had not performed it according to its terms, and therefore they were remitted to their original rights under the other. But they did not explain what the terms were that had not been complied with, or what the default consisted in, or show that they were not assenting. The judge trying the cause was entitled to information on these points, for he and
The plaintiffs have treated the case as one of accord without satisfaction; and no doubt a defense of that sort must fail. In re Hatton L. R. 7 Ch. App. 723; Goldney v. Lording L. R. 8 Q. B. 182. If the course of the case had been such as to impose upon defendant the necessity of proving the accord, it would have been incumbent upon him to follow it with evidence of satisfaction, or of some legal excuse for not completing it; but when the plaintiff is compelled in making out his own case to get rid of an accord, his evidence should go far enough to make out at least a prima facie case against it.
The judgment must be affirmed with costs.