Smith v. Foster

5 Or. 44

• Court: Oregon Supreme Court
• Decided: December 15, 1873
• Status: Published

Opinion

By the Court,

Prim, J.:

Under the Code, a pleading should contain a Concise statement of the facts constituting the cause of action or defense, instead of the circumstances and evidence from which such facts may be inferred.

This answer appears to be obnoxious to this rule of pleading; but waiving this objection, we think the demurrer to the answer was properly sustained, upon the ground that the matters set up in it were insufficient to constitute a defense to the cause of action contained in the complaint.

The answer undertakes to satisfy one promise by making another without alleging that the second promise was accepted by the creditor in satisfaction of the first. 'Such an agreement could not operate as a payment of the note unless it was accepted as such by the party to whom the original promise was made. The answer not only fails to aver that the agreement was accepted in satisfaction of the note, but also fails to aver that it was ever executed or performed by appellant by keeping the money on deposit subject to the order of respondent.

The principle appears to be well settled that “a mere agreement to substitute another agreement, or anything in lieu of the original obligation, is void unless actually carried into execution and accepted as satisfaction.” (2 Bouvier, 247.)

It was also averred that the maker of the note was ready and willing to pay the note when it became due; but a mere readiness and willingness to pay a demand when due amounts to nothing without an offer or tender of payment by one party, and a refusal by the other.

Judgment affirmed.