Wheeler, J.
The grounds relied on for a reversal of the judgment are, 1st. That the defendants’ petition for a new trial did not disclose sufficient legal grounds to entitle them to the relief sought. 2nd. That the Court erred in overruling the plaintiff’s exceptions to the defendants’ plea of accord and satisfaction; and in refusing his application for a new trial.
In answer to the first of these grounds, it is to be observed, that the sufficiency of the petition was not brought in question in the Court below. • The exceptions were confined to the supposed insufficiency of the bond, in the several respects indicated ; but the legal sufficiency of the petition does not appear to have been questioned. Had there been exceptions to the petition for the causes now urged; that is, that it did not show, such diligence as the law requires in defending the suit, or in instituting proceedings to obtain a new trial; or that by its averments it appeared that the defendant had his remedy to avoid the judgment by a writ of error, a very different case would have been presented. Or, if there had been a general demurrer to the petition overruled, it would have become necessary to revise the petition on the merits, and to [345] inquire whether it sufficiently appeared by its averments, that the defendant had a good defence to the action. But the defendant, by his silence, having acquiesced in the sufficiency of the petition, and the original cause having been re-tried upon its merits, it is now too late to question the legal sufficiency of the petition, or application on which the new trial was awarded.
It is in general true, that where a petition does not show good cause to entitle the party to relief, on the merits of his case, the objection may be taken by motion in arrest of judgment, or on error. But where the petition, as in this case, was in the nature of an application for a new trial, which was granted, without a question having been made as to the sufficiency of the petition, or the propriety of awarding the new trial, the case must stand on appeal from the judgment upon the second trial, as an ordinary case of the grant of a new trial.
The judgment of the Court overruling the plaintiff’s exceptions to the defendants’ plea of accord and satisfaction, presents a.graver'question and one not free from difficulty.
“ It is laid down as a general principle, that accord without “ satisfaction is no bar to an action for, or any extinguishment 66 of a debt; that is, that the accord or promise to confer sat- “ isfaction must be fully and actually executed and accepted, “ in order to afford a defence to such action. But this pro- “ position requires much explanation.
“ Where the accord is to do a thing in satisfaction at a 66 future day, and the act is accordingly done and accepted at “ that time, and is in law a sufficient satisfaction, no doubt 66 the original demand will not furnish a right to sue thereon ic after the day on which the satisfaction was rendered, al- “ though at the time of the accord, the satisfaction was ex- “ ecutory. In this instance there is accord with satisfaction, “ and the claim is satisfied and extinguished.
“ If the accord, or agreement that satisfaction should be “ rendered by the defendant, or a third person, at a future [346] “ day, be not founded on a new consideration, and be not so “ far binding on the debtor as to afford a fresh right of action “ to the creditor for its non-performance, an action lies on the cl original demand, even before the time prescribed for ren- “ dering satisfaction. Many of the old cases upon the subject “ of accord without satisfaction were expressly decided on this “ground.” (Chit, on Con. 760 to 762,7th Am. from 3d London Edit.)
In the earliest cases on this subject it was held that “ Ac- “ ceptance of the thing agreed on in these accords is the only “ material thing to make them binding.” (Hob. 178; 5 Mod. 86.) Yet in the time of Lord Raymond, it was said, “Of late “ it hath been held, that upon mutual promises an action lies, “ and consequently, there being equal remedy on both sides, “ an accord may be pleaded without execution, as well as an “arbitrament.” (Raym. 450; 2 Jones, 158; Tom. L. D. “ Acoord.”)
The general principle, however, undoubtedly is, as stated by Mr. Chitty, that an accord not executed is no bar to a preexisting demand. (3 Johns. Cas. 246, 256; 5 Johns. R. 386; 16 Id. 86 ; 6 Wend. R. 390.) “ It is well settled (says Green-leaf,) “ that an accord, alone, not executed, is no bar to an “ action for a pre-existing demand. And the rule is equally “ clear, that the person who is to be discharged is bound to do “ the act which is to discharge him; and not the other party.” (2 Greenl. Ev. Sec. 30.) The same learned jurist adds: “ Whether an accord, with a tender of satisfaction, is suffi- “ dent, without acceptance, is a point upon which the author- “ ities are not agreed. It is, however, perfectly clear, that a “ mere agreement to accept a less sum in composition of a “ debt, is not binding, and cannot be set up in bar of an “action upon the original contract.” “ But whether, where “ the agreement is for the performance of some collateral act, “ and is upon sufficient consideration, a tender of performance “ is equivalent to a satisfaction, seems still to be an opSn “ question ; though the weight of authority is in the affirm- [347] “ ative. In one case, which was very folly considered, it was “ laid down as a rule, warranted by the authorities, that a “ contract or agreement, which will afford a complete recompense to a party for an original demand, ought to be re-u ceived, as a substitute and satisfaction for such demand, and “ is sufficient evidence to support a plea of accord and satis- “ faction. (Coit v. Houston, 3 Johns. Cas. 249.) Therefore, “ where the holder of a promissory note, agreed in writing “ with the indorser, to receive' payment in coals at a stipu- “ lated price, and they were tendered accordingly, but refused, “ the agreement and tender were held to be a sufficient accord “ and satisfaction to bar an action on the the note, (same case.) “ So, where a man’s creditors agreed to take a composition “ on their respective debts, to be secured partly by accept- “ anees of a third person, and partly by his own notes, and to u execute a composition deed, containing a clause of release ; “ it was held by Lord Ellenborough, that an action for the original debt could not be maintained by a creditor, who had “promised to come in under the agreement, to whom the ac- “ ceptances and notes were regularly tendered, and who re- “ fused to execute the composition deed, after it had been ex- “ ecuted by all the other creditors ; the learned Judge remark- “ ing, that a party should not be permitted to say there is no “satisfaction, to whom satisfaction has been tendered, ae- “ cording to the terms of the accord. (Bradley v. Gregory, 2 “ Campb. 383.) But it has since been held, in this country, “ that a readiness to perform a collateral agreement is not to “ be taken for a performance, or as the satisfaction required “bylaw. Russell v. Lytle, 6 Wend. 390.” (2 Greenl. Ev. See. 31.) Of this last case, Russell v. Lytle, it is added, in the note, “ But in this case, the decision of the same Court in “ Goit v. Houston, many years before, was not cited or ad- “ verted to, and the question was decided upon the earliest “ authorities. Yet in several of these, the reason why an ac- “ cord without satisfaction is not binding, is stated to be, that “ the plaintiff has no remedy upon the accord; thus tacitly [348] “ seeming to admit that, where there is such a remedy, the “ accord with a tender of satisfaction is sufficient. 1 Roll, “ Ab. Tit. Accord, pl. 11, 12, 13 ; Allen v. Harris, 1 Ld. “ Raym. 122; Brooke, Ab. Tit. Accord, &c., pl. 6; 16 Ed. 4, “ 8, pl. 6. So in Lyman v. Bruce, 2 H. Bl. 317. See, how- “ ever, Hawley v. Foote, 19 Wend. 516, where an agreement “ to accept a collateral thing in satisfaction, with a tender and “ refusal, was held not a good bar.” (Ib. n. 4, 2nd Edit.)
In Story on Contracts, (Sec. 982 b. 3d Edit.) it is said, “ Whether an accord, with an unaccepted tender of satisfac- “ tion, be a sufficient defence, does not seem to be settled. If “ the accord be to accept a lesser sum than a debt, in satis- “ faction of it, there must be an actual acceptance in order to “ constitute a defence to the debt, and a mere tender is insuf- “ ficient. Thus, an agreement by creditors to accept fiveshil- “ lings six pence in the pound, in full satisfaction of their “ claims, was held to create no bar to an action for the full “debt, there being no consideration to support the agreement. “ But where there is a sufficient consideration to support the “ agreement, it seems that a tender, though unaccepted, would “ be a bar to an action. So, also, where a different mode of “ payment from that received by the original claim is substi- “ tuted for it by agreement, a tender according to such agree- “ ment will be sufficient, if it appear to have been a complete “satisfaction.” And Goit v. Houston, and other cases which will not be found so fully to support the text as does that case, are cited.
The law upon this subject, is thus left by the authorities, in an unsettled and perplexing state of uncertainty and embarrassment. On principle, however, it seems to us, that the reason and equity of the case support the doctrine stated in the extract taken from the text of Story, and in favor of which Greenleaf thinks there is the weight of authority. If the accord is by a valid agreement which will afford a remedy to compel its execution, it is difficult to perceive why a tender of performance should not have the same effect to discharge the [349] contract in that case as in any other. Yet the case of Coit v. Houston, relied on by counsel for the appellee in this case, appears to be the leading and principal case referred to in the authorities to which we have access, which fully supports that doctrine. That case was decided by a very learned Court, and, as remarked by Professor Greenleaf, was very fully considered, the four Judges who participated in the decision each giving his reasons at length. And though Eadcliff, J. dissented from the judgment, he fully agreed with his brethren that the accord was a valid and binding agreement, and that, for the purpose of effectuating it, “ a tender and refusal would “ be equivalent to an actual perform an v-, and entitle the ven- “ dor to the price, and the vendee to possession of the property “ which was the subject of the contract; that an omission or “ neglect to accept the article when tendered, is also equiva- “ lent to a refusal, and will subject the party in default to the “ like consequences.” These (he said) appeared to him to be “ plain principles founded in equity, and supported both by “ the civil law and the authorities in our own law.” And he rested his dissent on the ground of the want of legal tender; but more especially on the ground that the debtor, by after-wards selling the coal, the subject of the tender, had waived his right to demand the full price for it, and of consequence to have it adjudged a full satisfaction for the debt. On this point, the learned Judge used the following language, which I quote, as pertinent to the case we are considering and as expressive of what seems to me the true view of this branch of the subject. He said : “ I consider it as equally clear, that “ by force of the contract alone, which was merely executory, “ the property was not changed ; but on making the tender, “ if it was competent (that is, a legal tender,) the defendant “ had an election to consider it changed, and to become the “ bailee for the plaintiffs, or to affirm the property to continue “ in himself, and demand the difference between its actual “ value and the price agreed on. If he elected to consider “ the property changed, it would remrmi in his possession at [350] “ the charge and risk of the plaintiffs, and subject to their di- “ rection. He could not, in the character of bailee, dispose of “ it for his own benefit. The moment he did so, he treated it “ as his own, and affirmed the property to continue in him- “ self; and could only demand the difference between the value “ and the price which was stipulated.” He proceeds to show that this is in accordance with the rule of the civil law ; and concludes that, “ the defendant by the sale and disposition of “ the coal subsequent to the tender, determined his election to “ consider the property as his own, and cannot afterwards de- “ mand the full price for which it was sold to the plaintiff. “ He cannot retain the whole property, and at the same time “ demand the whole price. He is entitled to recover, in “ damages, a sum equal to the difference in value only.” (3 Johns. Cas. 255-6.) The Court do not appear to have disagreed as to the legal principles involved in the discussion; but only as to their application to the facts of the caes then before them. The majority were of opinion that there was evidence of a tender, or what was equivalent to a tender; which amounted to a performance of the accord, or new agreement on the part of the defendant, and was a bar to plaintiff’s right of action on the original contract.
Mr. Justice Thompson, after reviewing the authorities cm the subject of this defence, concluded by presenting a clear exposition of the law on the subject of the suflieiency and effect of the tender under the new agreement. “ Although I do “ not think it necessary, (he said,) for the purpose of deter- “ mining the present question, to say that, in all cases, a ten- “ der and refusal shall be equivalent to actual acceptance; yet “ I think it a rule founded in good sense, and one that is not “ contradicted by the general tenor of the authorities. Whe- “ ther in this case there was a tender and refusal, were ques- “ tions for the determination of the jury. And even admit- “ ting there was no actual tender, it would not, in my judg- “ ment, alter the result. The party to whom it is to be made, “has, undoubtedly, a right to waive that ceremony, and I [351] “ think the circumstances here are fully sufficient to warrant “ such an inference. When it is said that a tender and refusal “ are equivalent to an actual performance, it is not to be understood that it amounts to an absolute discharge of the “party from liability on the contract. In the case of a ten- “ der of money, it only discharges the subsequent interest and “ costs. And in the case of goods, like the present, it only “ exonerates the party from responsibility for their safe keep- “ ing. But as long as he continues in the possession of the “ goods, he will be bound to deliver them on demand. And “ if he should dispose of them, he would answer for the avails. “ On the whole, I think it a rule fully warranted by the authorities, that a contract or agreement, which will afford a “ complete recompense to a party for an original demand, “ ought to be received, as a substitute and satisfaction for such “ demand, and is sufficient to support a plea of accord and “ satisfaction. This appears to me to be a rule founded on “ sound principles, and one calculated for the furtherance of “justice. In the present case, the plaintiff’s remedy must be “ upon the agreement for the sale of the coal, in which case “ complete justice can be dispensed, according to the true in- “ tent and meaning of the parties.” (Id. 248, 249.)
Mr. Justice Livingston rested his opinion on substantially the same ground, that the acts of the parties were equivalent to a tender, and that that amounted to a performance of the new agreement on the part of the defendant. And he supported his opinion by reasons and principles drawn from both the Civil and Common Law authorities.
Kent, J.,
was of opinion that, as the coal was ready to be delivered to the plaintiffs, in pursuance of the agreement which they had accepted; as the defendant had repeatedly offered the coal to the plaintiffs, who at one time said they would call the next morning and look at the coal, and at another that they would call and bring it away and send a person to examine it; “ from these facts, the jury might infer that the de- “ fendant had performed the agreement upon his part, by an [352] “ acceptance on the part of the plaintiffs, and it may be held “ that the plaintiffs were properly concluded or estopped “ by their own declarations made at the time of the offer, and “ their act in pursuance thereof, from denying an acceptance “ of the coal.” In the view he took of the case, the defendant became trustee to the plaintiffs; and the acts of the parties were sufficient to give the defendant a right to the note sued on, for the discharge of which the accord was made, and consequently to bar any action the plaintiffs.might bring on the note. (Id. 257, 258.)
I have drawn thus largely from the opinions of the eminent Judges who decided the case of Coit v. Houston, because of the conflict of authorities on the question, and its importance as affecting business transactions of common occurrence; and because, they appear to me to contain a clear elucidation of the true principles on which the law, on this perplexed question, should be settled by this Court, as well as the best commentary I can give upon the law as directly applicable to the facts of this case. The only material difference between the facts in this case and in the case of Coit v. Houston, as respects the legal principles determined by the Court in that case, is, that it does not appear what disposition was Anally made of the cotton, the subject matter of the tender. It does appear that two of the defendants, Wiley and William Davis, had cotton baled at the gin where this cotton was delivered, and about the same time, which they removed from the gin; but the cotton tendered to Bradshaw was by the other defendant, John Davis, and it is in evidence that some of it remained at the gin for a year or more; so that it could not have been the cotton which was ginned for and removed by the other defendants. It does not. appear that the cotton delivered for Bradshaw was used or disposed of by the defendants ; or that by any act of theirs, they became responsible to the plaintiff" for its value. And this disembarrasses the present case of the question on which the Court were divided in the case of Coit v. Houston. For, supposing the tender to have been admit[353] ted, the difference of opinion there was as to what should be the effect of the subsequent sale of the coal by the defendant. On that question, in our practice, there could be, it would seem, no difference of opinion. If it liad appeared that the defendants after having made the tender, had appropriated the cotton to their own use, and thereby elected to affirm the property to remain in themselves, as in the case of the coal, that, on equitable grounds, must have been held an answer to the plea of accord and satisfaction. Clearly, they could, in equity and justice, have claimed no more than an abatement of the debt due upon the original contract, in a sum equal to its reduced value below the price at which the plaintiff had contracted to receive it; or the actual damage they had sustained by reason of his refusal to receive. For it would be plainly inequitable and unjust to permit the defendant to retain the whole property, and at the same time demand the whole price. On the other hand, if the property had depreciated in value and tlfe defendant had sustained injury and loss by reason of the refusal of the plaintiff to receive it, when tendered in accordance with his agreement, it would be equally inequitable and unjust to throw such loss upon the defendant, who had performed the agreement in good faith on his part. And in our practice, there could be no technical or legal difficulty in the way of adjusting and settling the respective rights of the parties growing out of the contract, so as to dispense complete justice in one action.
But in the present case it does not appear that the defendants elected to consider the property as remaining in themselves. They did not retain the possession of the property, but left it, as appears by the evidence, at the gin, where by the agreement it was to be delivered, and where it remained in the care of a third person, who became bailee for the plaintiff and held the property subject to his risk. The defendants therefore appear to have made their election, as it was undoubtedly their right, to consider the property in the cotton as vested, by the delivery and tender, in the plaintiff; and they [354] do not appear afterwards to have done any act inconsistent with his right of property. Having rightfully parted with the title and possession of the property, for the benefit of the plaintiff and by his appointment, they cannot be responsible to him for its value. And it is the obvious dictate of reason and justice that they should be held discharged of all liability upon the contract. They must be so held in equity, if not in strictness of law; for if not a legal, there can be no question that these facts showed an equitable satisfaction and discharge of the debt. (Dewees v. Lockhart, 1 Tex. R. 535.)
We cannot doubt, that upon the facts, the defendants would have been entitled to relief in equity; and the facts which would afford a ground of equitable relief, must constitute a good defence in bar of the action. This, it is conceived, cannot admit of controversy, whatever opinion may be entertained of the sufficiency of the plea as a plea of accord and satisfaction.
It was insisted in argument, that the verdict was not warranted by the evidence; in that the evidence did not show enough cotton tendered to satisfy the debt. There certainly was more than enough cotton delivered at the gin. The weight of the cotton baled was not stated by the witnesses; but we think the jury were warranted by the evidence in finding that the quantity contracted for was delivered according to the contract. The plaintiff did not put his refusal to accept on the ground that there was not enough in quantity of the cotton. Had he done so, greater strictness of proof on that point might have been required.
The new agreement in this case was not the less valid and binding, as between the parties, because not in writing. It was to be performed within less than one year; and it is not pretended that it was within the operation of the statute of frauds. It was made subsequently to the written contract, and was a new, substituted agreement, for the discharge 'Of the written contract; which it was competent to prove by parol testimony. (Chit, on Con. 107-111.)
[355] In the case of Coit v. Houston it was, in effect, pleaded, that the defendant had tendered the coal and the plaintiffs refused to accept it; and further that he delivered, and the plaintiffs accepted the coal in full satisfaction of the note. Here the plea was simply, that the defendant delivered the cotton in pursuance of the agreement, and demanded the note; and that the plaintiff refused to receive the cotton or deliver up the note. In strictness, the plea, we think, should have shown, what the evidence does show, that the defendants elected to treat the cotton as the property of the plaintiff; that they left it in possession of the proper person as his bailee, and did not retain or resume the possession. These facts show them clearly entitled to demand the delivery up, or cancellation of the note; and consequently, not liable to the plaintiff in an action upon it; and the answer setting out these facts would have shown a good defence in bar of the action. But the defendant was not apprised, by special exceptions to the plea, of the ground of insufficiency relied on, or he might by amendment have obviated the objection. On the authority of Coit v. Houston, we might, perhaps, be warranted in holding the plea legally sufficient. But if the Court erred in holding the plea, on general demurrer, sufficient, it was probably by reason of the fault of the plaintiff in not pointing out wherein it was insufficient, and thus directing the attention of the Court to that point. The plaintiff cannot have been injured by the ruling, as he examined witness touching the disposition of the cotton, and had the full benefit of contesting the validity of the defence in evidence on the trial. And the ruling upon the sufficiency of the plea cannot now be material to the just disposition of the case on the merits; and, consequently cannot afford a ground for reversing the judgment. (McClenny v. Floyd, 10 Tex. R. 519.)
The justice of the case is clearly with the defendants. And we may conclude with the observations of Kent, J., in the case of Coit v. Houston, that, “ The evidence tended to “ the conclusion drawn by the jury ; and as the Court of K. [356] B. (2 Term. R. 5) observed, on a like motion for a new trial, “ that, as it did not require much penetration to see where ■“justice lay, they would not exercise their discretion in send- “ ing down the cause to be re-tried on a technical objection in “point of law.” (3 Johns. Cas. 258.)
We may suppose the Court below very properly to have acted upon that view in refusing a new trial; and such an exercise of discretion would not afford a ground of reversal. And on the whole, we are of opinion that there is no error in the judgment and that it be affirmed.
Judgment affirmed.