20 Wis. 91 | Wis. | 1865
There are three appeals in this cause, and three entries upon the calendar: one by the plaintiffs, one by the defendants Rlizabeth Yager and Hiram Hiestand, and the other by the defendant Oheeves.
f The question upon the two first appeals is, whether the ¡agreement of June, 1853, between Williams and Yager, since i deceased, was an accord and satisfaction of the claim now set l up upon the bond and mortgage. The circuit court held that it was, and gave judgment for the plaintiffs for the balance found due upon the agreement, though a much larger sum was due according to the terms of the bond and mortgage.
It is a general rule, that an accord which has not been followed by satisfaction is no bar to an action. In other words, a subsequent promise, without execution, does not extinguish a pre-existing debt. But the rule has its exceptions ; and one is, where it is expressly agreed that the promise shall have that effect. When a debt is due by one contract, the parties may abolish it and substitute another in its place. In such case, if the substituted contract is founded upon any new or sufficient consideration, or if made upon the compromise of a doubtful or disputed claim, the original debt is extinguished, and no action can thereafter be maintained upon it. And this is so, whether the substituted contract be kept and performed or not. If not performed, the remedy is upon that contract for the breach. A new or sufficient consideration arises when the substituted contract is advantageous to the creditor, that is, when he derives a distinct benefit from it — something of value to which he would not have been entitled under the original contract. If he derives any such distinct benefit, and it is in addition ex
In the case at bar, therefore, there was no want of considera- ’ tion to constitute a valid accord and satisfaction. The original debt was payable in wool and sheep. The substituted promise
As already observed, the surrender of the original seeuri
We have spoken of the instruments sued on as a bond and mortgage. The instrument mentioned as a bond, however, is not such. It has no seal, and can take effect only as a parol or simple contract. It is obj ected that it ought not to have been received in evidence, and that when received it had no tendency to prove the cause of action set out in the complaint. The ground of this objection is, that it is described in the complaint as a bond. But this is a mistake. The words of the com-pfiaint are a “ certain bond or instrument in writing.” If not correctly described as a “bond,” it is as an “instrument in writing,” and as such was properly admitted in evidence.
The judgment below turned wholly on the question of accord and satisfaction. The defense that the sheep were diseased, and the defendants entitled to a deduction in damages on that account, was not considered. Some evidence was given upon
Tbe mortgage is upon 160 acres of land. Tbe defendant Oheeves is tbe owner of one eighty by subsequent purchase from Yager and wife. He answered setting up this fact, and that tbe other eighty still belonged to tbe estate, and demanded that tbe other eighty should be first sold. Tbe court granted tbe relief which be asked, and directed tbe sale of tbe other eighty first. Why be should feel aggrieved by tbe decision, or prosecute this appeal, we are unable to see. He certainly has no ground of complaint. It seems to have been thought that be could come here upon tbe main question, of whether tbe mortgage bad been satisfied. But this is not so. No issue of tbe kind is made by bis answer. It arises only upon tbe answer of tbe principal defendants, dSlizabeth Yager and Hiram Heistand. As be has no cause of complaint, it would follow ordinarily that tbe judgment as to him would be affirmed. But as it has already been wholly reversed on tbe appeal of tbe plaintiffs, this cannot be. It must therefore be reversed on bis appeal also, but without costs to be taxed in bis favor.
An appearance has also been entered and an argument submitted in behalf of tbe defendants Waltermire and wife. This is clearly irregular. They answer separately, claiming distinct rights not involved in tbe issues presented by tbe other defendants. Tbe court decided against them, and they have not appealed. Consequently their rights are not before us for adjudication. Their answer, in brief, is that they are tbe owners, by paramount title and not subject to tbe mortgage, of tbe
As a matter of practice I think but one judgment of reversal should be entered, and that on tbe appeal of tbe plaintiff below.
By the Court. — Tbe judgment is reversed upon each of tbe appeals, and tbe cause remanded for further proceedings in ac cordance with this opinion.