Babcock & Russell v. Hawkins

23 Vt. 561

• Court: Supreme Court of Vermont
• Decided: August 15, 1851
• Status: Published

Opinion

The opinion of the court was delivered by

Redfield, J.

There is perhaps no subject connected with the law, upon which there has been , more discussion, than that of accord and satisfaction, or upon which there is more want of agreement. But we think it must be regarded as fully settled, that an agreement upon sufficient consideration, fully executed, so as to have operated, in the minds of the parties, as a full satisfaction and settlement of a pre-existing contract or account, between the parties, is to be regarded as a valid settlement, whether the new contract be ever paid, or not, and that the party is bound to sue upon the new contract, if such were the agreement of the parties. This is certainly the common understanding of the matter. It is reasonable, and we think it is in accordance with the strictest principles of, technical law.

1. There is no want of consideration, in any such case, where one contract is substituted for another, and especially so, where the amount due upon the former contract, or account is matter of dispute. The liquidating a disputed claim is always a sufficient consideration for a new promise. Holcomb v. Stimpson, 8 Vt. 151.

2. The accord is sufficiently executed, when all is done, which the party agrees to accept in satisfaction of the pre-existing obligation. This is ordinarily a matter of intention, and should be evidenced, by some express agreement to that effect, or by some unequivocal act evidencing such a purpose. This may be done by surrender of the former securities, by release or receipt in full, or in any other mode. All that is requisite is, that the debtor should have executed the new contract to that point whence it was to operate as satisfaction of the pre-existing liability, in the present tense. That is shown, in the present case, by executing a receipt in full, the same, as if the old contract had been upon note, or bill, and the papers had been surrendered.

3. In every case, where one security, or contract, is agreed to be received in lieu of another, whether the substituted contract be of the same or a higher grade, the action, in case of failure to perform, must be upon the substituted contract. And in the present case, as it is obvious to us, that the plaintiffs agreed to accept the note and the defendant’s promise to pay the costs in full satisfaction, and in the place of the former liability, the defendant remained liable only upon the new contract.

4. In all cases, where the party intends to retain his former remedy, he will neither surrender or release it; and whether the party shall be permitted to sue upon his original contract is matter of intention always, unless the new contract be of a higher grade of contract, in which case it will always merge the former contract, notwithstanding the agreement of the debtor to still remain liable upon the original contract.

5. In every case of a valid contract, upon sufficient consideration, to discharge a former contract in some new mode, the new contract supersedes the remedy for the time, until there has been a failure; and then the creditor may always, if he choose, sue upon the new contract. This is certainly the inclination of the more modern cases.

We think the judgment must be affirmed.