94 Mo. App. 356 | Mo. Ct. App. | 1902
A building owned by the respondent company, on which it held a policy of insurance in the appellant company, was damaged by fire and afterwards an agreement was made between -the president of the realty company and an adjuster or general agent of the assurance company, by which the former was to repair the property forthwith and the latter to pay its proportion of the cost of repairs, there being insurance in other companies on the building.
The Realty company took a bid from a firm of contractors to make the repairs for seven hundred and eighty dollars, which there was evidence to show was, by the Assurance company’s agent, assented to as reasonable and the repairs were accordingly made. Afterwards, the same adjuster who had assented to said arrangement, and in consideration thereof agreed to waive an appraisement of' the loss and proofs, refused to pay the appellant company’s proportion of the cost of the repairs, giving as reasons that there never had been an appraisement of the loss and that the bill was excessive. The Realty company thereupon brought suit on the policy. The ease was in this court on appeal heretofore and will be found reported in 86 Mo. App. (St. L.) 596.
At the second trial exactly the same evidence was introduced as on the first trial, in fact, it was submitted on the evidence contained in the bill of exceptions.
Appellant’s counsel very earnestly insists that the decision on the first appeal ought to be revised; but after careful attention to his able argument and brief we remain convinced the decision was sound.
The position taken is that after the agreement was entered into by the president of the Realty company and the adjuster of the Assurance company that repairs should be
The defense, therefore, was an accord and satisfaction, and to support it an accord was proven but no satisfaction. A promise by a party against whom a liability has accrued on a contract to do something in discharge of his liability, may be a good acquittance while it still remains in fieri, if the other party expressly stipulates to receive the new promise itself as a substitute or satisfaction for the original liability and if the substituted agreement is based on an adequate consideration. Warren v. Skinner, 20 Conn. 559. In the absence of an express stipulation to accept the promise as a discharge, it must be fully kept, before a good plea in bar to the original cause of action arises; that is, satisfaction as well as an accord must be shown. Goff v. Mulholland, 28 Mo. 397; 1 Smith’s Leading Cases (9 Ed. Am. Notes) 620.
Here there was neither performance nor a tender of performance, but a refusal by the appellant to perform. A refusal, too, on the ground that there had been no appraisement, a condition of the contract which had been waived as part of the inducement to respondent to make the new arrangement. Eespondent did not agree to relinquish its original claim simply for appellant’s promise to pay for the repairs, but for payment; and as long as the new promise remained executory the old cause of action continued intact.
The judgment is affirmed.
