The defence pleaded is accord and satisfaction. Both pleas show that the new contract pleaded was executory. The averment is, that if the defendant should perform his promise the plaintiff would discharge his claim. The averment in the fifth plea, "that in pursuance of said agreement, the plaintiff, in manner and form aforesaid, did then and there relinquish and abandon his claim against the defendant," is the statement of the defendant's conclusion of law, and not the averment of a fact. There is no averment in either plea that at the time of the making of the new contract the plaintiff accepted the defendant's promise in satisfaction of his claim, or the new contract when executed as a satisfaction of it. If the new promise, or the new contract, had been accepted in satisfaction of the original claim, and the defendant had failed to perform, the plaintiff would have been driven to his action for damages for the breach. But the original claim never having been satisfied, the plaintiff can maintain his present action upon the note. For his breach of the new contract, if there has been any, the defendant may have his action for damages. Woodward v. Miles, 24 N.H. 289; Rochester v. Whitehouse, 15 N.H. 468; Clark v. Dinsmore, 5 N.H. 136; Ranlett v. Moore, 21 N.H. 336; Green v. Davis,44 N.H. 71; Amoskeag Bank v. Robinson, 44 N.H. 503, 506; Kenniston v. Bartlett, 46 N.H. 517; Kidder v. Kidder, 53 N.H. 561; Cary v. Bancroft, 14 Pick. 315.

Exception overruled.

CHASE, J., did not sit: the others concurred. *Page 401