Flagg v. Mann

| Vt. | Mar 15, 1858

The opinion of the court was delivered by

Aldis, J.

The note in suit was for sixty-five dollars. The maliers of the note had failed. Afterwards, the plaintiff, and the defendant Lyman, made an agreement in relation to the note, and did certain acts in execution of the agreement, which the defendants claim were in accord and satisfaction of the note.

I. To constitute a good accord and satisfaction, there must be an agreement that the thing to be received by, or done for the plaintiff, shall be in discharge and satisfaction of the debt. In this ease, it appears that the parties contemplated a present surrender and discharge of the note. Had the note been'there present, it would have been given lip then. As it was not present, the money was then put into the hands of a third party, for him to hold for the plaintiff; and the plaintiff was to surrender the note to such third person, for the defendants.

II. There must be a sufficient consideration for this agreement. The payment of the fifteen dollars in money, was not such a consideration. Standing alone, it was only part payment. But there was another consideration. The plaintiff was to have the service of the stallion, belonging to Priest and Lyman, for his two mares. This was something of legal value to which he had no right before. Although the service of the horse at a fixed price was advertised, yet, the plaintiff was not thereby entitled to claim such service of the horse, upon tendering to the owners the fixed price. There might be good reasons for their refusing his use for the plaintiff’s mares. They had the right to refuse without any reason.

III. The agreement must be fully executed.

The case, after stating that the plaintiff and the defendants made the agreement, proceeds to say, “ upon this, the mares were put to the horse.” This part of the contract was then executed. The payment of the fifteen dollars was then also made by the defendant to a third person (Priest), who was agreed upon in the contract, as the person to whom the money should be paid, and who has since ever held the money for the plaintiff, and in readiness to be paid to him on the surrender of the note. The defendant Lyman, could not recall the money from the hands of Priest. It was substantially money belonging to the plaintiff. Nothing more could be done by Lyman to fulfil and complete his part of the contract; nor was it in his power to rescind the contract and put himself in his former situation. Under such circumstances, it would obviously be unjust to allow the plaintiff to omit to give up the note and take his money, which he could do, or leave undone, as he pleased (and, which, whether performed or omitted, only affected his own interests), and take advantage of such omission on his own part, to work an injury to the defendant. That which constituted the new consideration of the agreement, the specific thing the plaintiff had bargained for, he had already received.

IV. It is urged that the condition annexed to the agreement^ that if both mares should prove not to be with foal, the defendant was to pay the plaintiff' fifteen dollars, if but one of them, then seven dollars and a half, made the agreement an executory one, so that there could not have been a satisfaction.

But the main object of the agreement was for a service to be rendered in praesenti, and for money then paid ; it was not for something thereafter to be done. The condition was only to secure a compensation to the plaintiff, if he failed to receive the expected advantage from the service then rendered. The right to such compensation did not depend upon anything which the defendant might, or might not do, but upon a contingency neither party could control. Nor did either party intend that the note should be kept on foot as a security for such contingent compensation.

Looking at the whole agreement, we conclude that it was not merely the new promise of the defendant in lieu of the old one, or part payment of what was then due, and a new promise of the same nature and by the party then bound; but that it was a new agreement upon a new consideration of a specific service actually accepted by the plaintiff, and of money paid in present discharge and satisfaction of the note. It was not intended that the provision against loss from a future contingency, should change the transaction into an executory agreement.

The case comes fairly within the principle of Babcock v. Hawkins, 23 Vt. 561" court="Vt." date_filed="1851-08-15" href="https://app.midpage.ai/document/babcock--russell-v-hawkins-6574612?utm_source=webapp" opinion_id="6574612">23 Vt. 561. When the new promise is founded on a new consideration, and is binding on the original promisor, it is generally held to be a satisfaction of the old debt. Much more, when the main agreement is actually executed, and the portion of the agreement which looks to the future is only collateral and contingent.

Y. But upon another and well established principle, this contingent agreement can not defeat the accord and satisfaction. If the new promise was, in its inception, executory, and not of itself an accord and satisfaction, still, if afterwards it was actually executed, and the plaintiff received the full benefit of its complete performance, it thereby became an accord and satisfaction. This principle is well settled, and needs no citation of authorities to sustain it. The case finds that the contingency from which the plaintiff might have received loss, did not occur ; that the plaintiff has had the full benefit of the agreement; both of his mares having had colts, and thus that the only part of the agreement which was conditional and executory, has ceased to exist.

The judgment of the county court is affirmed.