| Mass. | Jun 23, 1875
The evidence offered by the defendant does not go far enough. The new agreement relied on was not performed by the defendant, or prevented in its performance by the plaintiff 5 nor does it appear that the plaintiff agreed to accept the defendant’s promise alone as a satisfaction of his debt. An agreement with mutual promises to perform, upon which the parties have a legal remedy, may, it is said, be pleaded as a good accord and satisfaction, when the plaintiff accepts the new promise and relies upon it for his only remedy. But there must be this agreed substitution of the new for the old cause of action, or the plaintiff’s right to recover upon the original undertaking is not defeated. In addition to this, the alleged promise of the plaintiff to rely upon the securities held by him for the payment of his notes was made solely in consideration of an oral promise by the defendant to pay a higher rate of interest. Upon such a promise the plaintiff is without legal remedy, because, by statute, a rate of interest higher than six per cent, cannot be recovered by action, unless the agreement to pay the same is in writing. St. 1867, c. 56, § 2. There could, therefore, be no substitution of the latter promise for the defendant’s personal liability as maker of the notes within the rule as above stated. Good v. Cheesman, 2 B. & Ad. 328. Reeves v. Hearne, 1 M. & W. 323. Bige
Exceptions overruled,.