| Miss. | Oct 15, 1876
delivered the opinion of the court.
Cook sued Whitney on promissory notes, and Whitney pleaded that the notes were discharged by an agreement between himself and Cook, that Cook should have an interest to a certain extent in a claim held by Whitney against the United States. On trial of the issue joined upon this plea, evidence was produced by the defendant strongly tending to
Such an instruction is proper only where all the facts in evidence being taken as absolutely true, every just inference from them fail to maintain the issue. In this case it was erroneous to so instruct the jury, because, however strange an arrangement it may have been for Cook to discharge Whitney from the notes for the chance of gaining from a share in his claim against the United States, and however much the retention of the notes by Cook, and other circumstances, may be calculated to create a doubt as to the real nature of the agreement between the contracting parties, the testimony presented such a case as made it proper to let the jury pass upon the disputed facts, without any declaration from the court as to the weight or sufficiency of evidence.
The settled doctrine is that, if the promise or agreement itself, and not its performance, is accepted in satisfaction and extinction of the demand, it is good as an accord and satisfaction, without performance. If Whitney had a claim against the United States, and Cook agreed to accept an interest in this claim in certain stipulated proportion, in satisfaction and discharge of the notes sued on, and Whitney agreed that Cook should have in satisfaction of the notes the stipulated interest in the claim against the United States, there is no rule of law which prevents the notes from being thereby discharged and extinguished as a cause of action against Whitney. Cook had a right to accept an interest in the claim of Whitney against the United States in payment of the notes, and, if he did this, cannot now maintain an action on them. If, however, the contemplation of the parties was that performance of the contract for an interest in the claim should be a discharge of the notes, the mere agreement did not constitute an accord and satisfaction, but performance is necessary to complete it. . Heirn v. Carron, 11 S. & M. 361; Pulliam v. Taylor, 50 Miss. 251" court="Miss." date_filed="1874-10-15" href="https://app.midpage.ai/document/pulliam-v-taylor-7984419?utm_source=webapp" opinion_id="7984419">50 Miss. 251; 2 Parsons on Contracts, 681; Comyns’s Dig., tit. Accord (B) 4; 1 Smith’s Lead. Cases (7th Am. ed.), 595 et seq.; 2 Chitty on Contracts (11th Am. ed.), 1122; 2 Story on Contracts, § 1354; 1 Addison on Contracts, § 378; Babcock v. Hawkins,
It was not necessary that there should have been any formal or written assignment by Whitney to Cook of an interest in the claim. A distinct contract between the parties that the notes were paid by the right to share in the claim is all that was required.
The third instruction -for the plaintiff below requires more than this, and is erroneous. The fourth instruction for the plaintiff is wrong, because it refers to the jury the determination of a question of law. The fifth instruction for the plaintiff is wrong, in stating that the evidence was not sufficient to maintain the plea of accord and satisfaction. As stated in the earlier part of this opinion, that question should have been left to the jury.
It is urged for the defendant in error that the transfer by Whitney to Cook was void by virtue of an act of Congress, U. S. Rev. Sts. § 3477. We think not. The transaction occurred prior to the Revised Statutes cited, and the act of 26th February, 1853,10 U. S. Sts. at Large, 170, entitled “AnAct to prevent frauds upon the treasury of the United States,” which is embodied in the section of Revised Statutes referred to, did not annul the agreement for an interest in the claim. Lawrence v. United States, 8 Ct. of Cl. 252.
Judgment reversed, and cause remanded for a new trial.