85 N.J.L. 692 | N.J. | 1914
The opinion of the court was delivered by
There was a direction of a verdict for the plaintiff for the sum of $16,014.96. Neither the indebtedness nor the amount thereof was disputed by the defendant.
The sole defence relied on in the court below and insisted upon here as a bar to the plaintiff’s right of recovery, was and is that the proof in the case showed that there had been a novation of the debt sued upon. This the appellant claims is made to appear by correspondence had by him with the plaintiff. The plaintiff wrote to the appellant: "If you will substitute a single note with interest payable semiannually for the several notes of yours, which I now hold, I agree for myself and my personal representatives to carry
To the proposed arrangements the appellant acceded. It is important in this connection to note that the agreement is, in effect, neither a novation nor an accord and satisfaction. It is wholly executory in character. It clearly contemplates something to be done by the defendant for the extinguishment of the old debt, and that was to give the plaintiff a single note in substitution of the old note, and this the plaintiff never did. It was not an accord and satisfaction, for though there was proof of an accord, there was no proof of a satisfaction. A defence of accord and satisfaction will be of no avail in an action at law, where it appears to have been only partly executed. Oliver v. Phelps, Spenc. 180; Line et al. v. Nelson et al., 9 Vroom 358; Stone v. Todd, 20 Id. 274. To satisfy the requirement of the law, the accord must be executed. A mere executory agreement is not sufficient. Bandman v. Finn, 185 N. Y. 508; 12 L. A. R. (N. S.) 1134, and note.
Every novation embraces, necessarily, an accord and satisfaction, but the converse of this proposition is not true.
Lord Chancellor Selborne, in Scarf v. Jardine, L. R., 7 App. Cas. 351, says: “ ‘Novation,’ a term borrowed from the Civil law, means this, that there being a contract in existence some new contract is substituted for it, either between the same or different parties, the consideration mutually being the discharge of the old contract.” * * * Morecraft v. Allen, 49 Vroom 729.
Now in the case sub judice the appellant claims, because he had on several occasions told the plaintiff that he was prepared to deliver to him a single note for the various separate notes, and received the replies that the notes were in a safety-deposit box in the city of Paterson, and that he, the plaintiff, W'ould get them for him, that this was tantamount to an execution of the terms of the agreement and equivalent to an accord and satisfaction or a novation. But for the reasons already stated this is not so. The appellant, in fact, never made a tender of any note to the plaintiff. It was the duty of the appellant, if he desired the extension of time, to seek the plaintiff and offer the single note in substitution, and this he never did. The appellant never substituted a single note, and though it appears he offered to do it whenever the plaintiff produced the old notes, this constituted no bar to the action. For'ithe legal rule is well settled that if an agreement intended as a novation is conditional, the novation can only take effect by the performance of the condition before (he debt is "extinct: 29 Cyc. 1134. In the present case, in order, for the defendant below to have succeeded in his defence, it was incumbent upon him to establish that a new
Judgment will be affirmed.
For affirmance — The Chancellor, Chief Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisoh, Bogert, Vredenburgh, Congdon, White, Heppenheimer, JJ. 13.
For reversal — Fone.