Bunge v. Koop. more to make it up to seventy-five per cent when the defendants should be able, in satisfaction of all their liability, whatever it might be, on the original agreement. Such being the case, the subsequent correspondence of the parties may be appealed to, in order to fix it with more certainty. The letter of the defendants, of the 2d of August, in answer to one written by the plaintiffs the day previous, demanding the unpaid residue of their claim, makes the understanding different from any yet alluded to. It was, "to use their best endeavors to make up seventy-five per cent of" that claim, and to pay at once $3500 in cash. They state in it the impossibility of doing more, but trust in their ability, before long, to pay the balance. This, certainly, is not the language of those who have just made a complete compromise of the original olaim, by paying a certain sum in cash, and substituting a new promise to pay enough in addition, so as to make three fourths of the whole amount, instead of their liability, on the original undertaking, but is rather an appeal to pity. "Using their best endeavors" is not equivalent to paying if they should be able. The defendants would be bound to show, in the former case, that they had made exertions to procure the money, but had failed. In the latter case the plaintiff's would be bound to show ability to pay. Of course there can be no doubt that, while the original contract continued to be performable at a future day, and the advantages or losses to arise from its performance therefore necessarily remained uncertain, an agreement by either party to receive a certain sum, either with or without a contingent promise to pay more, as a consideration for the rescission of such contract, or even a mutual one to rescind it gratuitously, would discharge the obligation of the original contract. But the unsurmountable difficulty in the present case is, that the sum actually paid was so paid as part of a larger sum admitted to be due, and so admitted by being accompanied by a promise to pay enough more to make up an aliquot part of some sum, even three Bunge v. Koop. fourths of which was avowedly greater than the sum so paid, which, therefore, must have been previously determined by the parties. I do not see that the actual purchase by the plaintiffs of exchange, on the 1st of August, affects this question. They were entitled to recover the difference between the contract and market price on the day when the contract was performable, which, from the evidence, and the law applicable to it, I have inferred was about the time of the first interview between the plaintiff De Neufville and the defendant Koop, and any purchases were only important as fixing the market price. It is also somewhat remarkable, and not a slight difficulty, that the new defense, not set up in the pleadings, which it is now proposed to construct out of the evidence, was not insisted upon at the trial. It formed none of the grounds on which a motion to dismiss the complaint was made. One of those grounds is, "that before the expiration of the time for the performance of the original contract, the parties met and agreed upon the amount of damages, and the manner in which those damages should be paid and settled." A tolerably strong admission that the parties liquidated the damages before agreeing, on a compromise, to pay less than the whole in satisfaction. The legal propositions which the defendants' counsel requested the court to give to the jury, all assume that the plaintiffs had a fixed and certain demand, which was compromised. The fifth request to charge, which covered, substantially, the same ground as that before mentioned in regard to a dismissal of the complaint, assumed that "the parties agreed among themselves upon the measure of damages, for the defendants failure to fulfill their contract, and the manner in which that difference should be compromised and settled. Indeed the whole case appears by the pleadings, evidence, points taken on the trial, and argument before us, to have been put upon the ground, either that borrowing the money from friends, or the promise to pay the deficiency of seventy-five Bunge v. Koop. per cent conditionally, made the payment of a less sum a good satisfaction of a greater sum due. It is a very grave question how far this court, on exceptions only, can spell out a defense from the evidence, not set up in the pleadings or urged at the trial, even if it were tenable. I am, therefore, in favor of overruling the exceptions, and affirming the judgment. JONES, J. The defense set up in the answer is what is technically known as an accord and satisfaction; that is, it alleges that the plaintiffs, in consideration that the defendants would borrow from their friends $3500, agreed to accept said sum of $3500 in satisfaction of a demand of $6400; that the defendants did borrow said sum of $3500, and paid the same to the plaintiffs in satisfaction of said sum of $6400, and the plaintiffs received the same in satisfaction thereof. There is no allegation that the said sum of $6400 was not justly due and owing at the time of the agreement. The mere calling it an alleged demand is not an averment that it was not justly due and owing. The allegation that it was to be left entirely to the honor of the defendants to pay an additional sum, does not affect the character of the pleading. It only shows that the theory of the plea was that the payment and receipt of a less sum in satisfaction of a greater one, when it is a part of the arrangement that such less sum should be borrowed, in consequence of the debtors' inability to pay it himself, constitutes a bar to an action brought to recover the difference between the sum paid and the debt on which it was paid. This is essentially a plea of accord and satisfaction. To entitle the defendants to a verdict, they must show that the agreement alleged in the answer was in fact made, and that it constitutes in law a good defense. They cannot, without amending their pleading, succeed upon proof of an agreement different from that relied on in the answer, although such agreement would be a good defense. There is not sufficient evidence in this case to warrant a Bunge v. Koop. jury in finding that there was, in fact, such an agreement made as is alleged in the answer. If, then, the judge had been specifically requested to leave that question of fact to the jury, he would have been bound to refuse the request. When a judge directs a verdict, and there is no specific request to leave any particular facts to the jury, and only a general exception to his direction to the jury, then only two matters can be inquired into, on a review of his decision: 1. Do the uncontroverted facts call for a decision in favor of the party against whom he directed a verdict? 2. Would a verdict of the jury in favor of the party in whose favor the judge directed the verdict be set aside as against the evidence? If both these queries be answered in the negative, the decision of the judge must be affirmed. This results from the doctrine laid down in Clark v. The Mayor, &c. (24 How. Pr. cited from p. 336;) Winchell v. Hicks, (18 N. Y. Rep. cited from p. 565;) The Marine Bank v. Clements, (31 id. 33.) In the case at bar (although there are requests which will be mentioned hereafter) there is no specific request to the judge to leave to the jury to determine as a question of fact whether the agreement set up in the answer was made or not. There is, however, a general exception to his directing a verdict for the plaintiffs. Upon examining the evidence, I do not find any uncontroverted facts which call for a decision in favor of the defendants, on this point. On the contrary, I find evidence which would clearly sustain a verdict finding that no such agreement as is alleged in the answer was made. Consequently this verdict cannot be set aside either on the ground that such an agreement was made, or that there was sufficient evidence to require the submission of that matter to the jury. There is evidence tending to establish that either one of two agreements was made: 1st. That the plaintiffs, in consideration of the defendants' borrowing $3500 from their friends, and paying it to the plaintiffs on account of the Bunge v. Koop. sum of $6400 admitted to be due, agreed to give the defendants time to pay the balance. 2d. That before any breach of the contract sued on, and before any thing was due thereon, the parties made, and for a sufficient consideration substituted, a new agreement in place of the contract sued on. The first of these agreements, I think, would constitute no defense. (Brooklyn Bank v. DeGrauw, 23 Wend. 342.) The second, I am inclined to think, would, but it is not necessary to decide the point. The difficulty in the way of the defendants is that they have not pleaded either one of these two agreements. Consequently they cannot ask for a verdict on the strength of either of them. In this view, the refusal of the judge to charge as requested was perfectly correct. All of those requests were based on the assumption of there being sufficient evidence to establish one or the other of these two agreements; and they were requests desiring the judge to charge the jury that if they found either one of these two agreements to have been made, they should find for the defendants. As neither of these agreements was set up in the answer, or embraced in the issue to be tried, I think the judge properly refused to charge the requests. The exceptions taken to the exclusion of evidence are not well taken. The evidence offered was either incompetent, or was asking the witness to reiterate testimony already given by him. There is one ground for the motion for a nonsuit which should be noticed, (the others are covered by the above views;) that is, a part of the second ground: "That the defendants had until the end of July 31, 1864, in which to perform, and the plaintiffs must prove a demand, and offer to pay on the last day." The complaint alleges that the defendants had expressed their inability to perform, and the plaintiffs' evidence sustains the allegation. This was sufficient to waive a demand, and offer to pay by the plaintiffs. (Crist v. Armour, 34 Barb. cited from pp. 386, 387.) |