McGehee v. Shafer

15 Tex. 198 | Tex. | 1855

Wheeler, J.

It is admitted, that, though a party may bring several actions and recover several judgments against joint trespassers, he can have but one satisfaction. - But where x a party relies on an accord and satisfaction, in bar of an action, or in discharge of a judgment, he must show that the accord was fully executed ; for it is well settled that an accord, alone, not executed, is no bar to a pre-existing demand. (Chit. on Con. 760, 7 Am. 3rd Lond. Edit. 2 Greenl. Ev. Sec. 30.) The only point of controversy has been, whether an accord, with a tender of satisfaction, is sufficient, without acceptance ; and, upon this point, the authorities are not agreed. The question was considered by this Court in the case of Bradshaw v. Davis, (12 Tex. R. 336,) where the authorities are reviewed ; and the conclusion adopted, that, where the accord was to do a thing in satisfaction at a future day, and performance thereof was tendered at the time appointed, and there was a sufficient consideration to support the agreement, the tender of performance was sufficient. If, however, the accord be to accept a less sum than a debt, in satisfaction of it, there must be an actual acceptance, in order to constitute a defence to the debt; and a mere tender is not sufficient, for there is no consideration to support the agreement. (Story on Con. Sec. 982 b, 3rd Edit.) Here the accord pleaded was not to do the thing in satisfaction, that is, to give the note of the defendant, Harvey, with Lindsey as security, at a future day, and a tender of performance accordingly; consequently the question of the effect of such tender does not arise in this case. And if such had been the agreement, there never was a tender of performance of the agreement, in the terms of it; for the note was never executed by Lindsey. The question here is, whether the accord was, in fact executed ; and we think it is clear that it was not. The thing to be received in satisfaction, was a note executed by Harvey and Lindsey ; and it is proved indisputably, that Lindsey never did sign the note ; and there is no proof that the plaintiff, Shafer, ever agreed to dispense with, or relinquished, his right to have the note executed by Lindsey. Nor is any consideration shown, to support such an agreement on his part, express or implied. It is true, he gave his receipt, expressing an acknowledgment of his having received the note executed by Harvey and Lindsey, “ in satisfaction of damages in the suit of,” &c. But it is not questioned, that it was competent to explain this receipt by parol, and to prove that in fact he never did receive such amóte. That a receipt may be explained by parol is too well settled to admit of question. A strong case of the application of this principle is, where the receipt of the consideration money is acknowledged in a deed conveying lands. The grantor is permitted to contradict the deed, by proving that the money was not received. (14 Johns. R. 210 ; 20 Id. 338.)

W e think it clear, that evidence was properly heard to explain the receipt, and show that the note was not executed as. therein expressed; and that the accord pleaded, not having been executed in fact, according to its terms and intention, cannot avail the defendant as satisfaction of the judgment sought to be enjoined.

The bringing money, to the amount of the note, into Court, cannot affect the question, for it was only then offered conditionally ; there was no proof of a previous tender of it, but the contrary • and the accord, not having been executed at the time, was not binding on the plaintiff; and no subsequent offer of an equivalent could make it so. We are of opinion that the Court did not err in dissolving the injunction and dismissing the petition; and the judgment is affirmed.

Judgment affirmed.