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Coit v. Houston.
Coir and Woolsey against Houston.
A. being indebted to B. by a promissory note, for $1,167, it was agreed in
writing between them, that A. should deliver to B. as much coal at ten dollars per chaldron, as would amount to the sum due on the note, the coal to be of the like quality with that purchased by A. of B. out of a certain ship. No time or place was fixed for the delivery, A. having in hie coal yard a large quantity of coal, and sufficient of the quality mentioned, though consisting of different kinds, immediately afterwards, and at different times, tendered to B. the coal, in satisfaction of the note, and B. made no objection to the place or mode of delivery, but said, at one time, he would send and take them, and at another, that he was not ready to receive them, and finally neglected to take them. In an action, afterwards brought by B. against A., on the note, it was held that the agreement for the delive ery of the coal was valid, and that the tender on the part of A. was equivalent to a performance, so as to bar the plaintiffs' action, and might be
pleaded by way of accord and satisfaction. An accord, in order to be an effectual plea in bar, must be executed and
satisfied with a recompense in fact, or with an action, or other remedy to execute it and recover a recompense. Per Thompson, J., the other judges
It is a principle settled, that if a person is to acquire a right to a debt or duty
by previously doing some act, this right is as completely vested by an offer to do it and a refusal, as if the act had been actually performed, or, in other words, a tender and refusal is equivalent to a performance. Per Living.
ston, J., the other judges acc. Radcliff, J., thought that the defendant ought, in strictness, to have sepa
rated the quantity sold, in order to make a specific tender, and to ascertain that it corresponded with the quality contracted for; and that the accord was never in fact executed.
This was an action of assumpsit, brought by the plaintiffs, as endorsees, against the defendant, as endorser, of a promissory note, given by P. and G. Skidmore, to William Burrall, for 1,167 dollars and 33 cents, payable the 14th day of November, 1800. The defendant pleaded non assumpsit, with notice that he should give in evidence an agreement, in the words following to wit: “We do agree to deliver to Coit and Woolsey as much coal as will amount, at ten dollars per chaldron, to principal, interest and charges of the note
Coit v. Houston.
which they now hold against us, the said coal to be of an equal quality with the coal we purchased from them, from
the ship New York, Captain John Seaward, which [*244) was from Glasgow. New York, *December 24,
1800. Paul Skidmore, William Houston, William Burrall."
The notice further stated, that the defendant had offered and tendered the coal on the agreement, and that the plaintiffs refused to accept them; and further, that he had delivered, and the plaintiffs accepted, the coal in full satisfaction of the note. From the testimony stated, it appeared that the defendant had a large quantity of coal, in a coal yard, in Roosevelt street. There were 3 or 400 chaldrons, which was generally as good as that received from the ship New York, but it lay in bulk, and no considerable quantity of one kind could be taken, without mixing with others. The market price of coal at the time was about 10 dollars. Shortly after the above agreement, the defendant had cartmen and laborers ready to deliver the coal to the plaintiffs. About the beginning of February, 1801, the plaintiffs offered the coal for sale to William Dodge, saying they were obliged to take them back. On the 26th or 27th of December, 1800, the plaintiffs were requested by the defendant's clerk to take away the coal from Roosevelt street, which they said they would do. It also appeared that the defendant, soon after the contract, repeatedly called, and requested the plaintiffs to take away the coal. And at one time, one of the plaintiffs promised to call next morning and look at them. This the witness thought was between Christmas and Newyear. Another witness said it was in March. A witness testified that he was present at a time when much conversation took place between the parties on the subject, and the plaintiffs did not pretend that the defendant had ever said he was unable or unwilling to deliver the coal. In the spring of 1801, the defendant called on the plaintiffs, and tendered the coal, saying it was ready for them; and the plaintiffs answered, that they were not ready to receive it; and would take it
Coit v. Houston.
when they pleased. On the part of the defendant, [query? plaintiff]it was proved that on the 11th of February 1801, the defendant called at the *counting-house of (*245) the plaintiff's, and told their clerk that he had come to inform the plaintiffs that he could not deliver the coal because Burrall detained them. The witness informed the plaintiffs of this, and the present suit was soon after commenced.
It also appeared that the plaintiffs had never taken any part of the coal, but that the defendant, in the winter of 1802, took from the yard all that remained, being upwards of one hundred chaldrons; the yard then lying open.
On the part of the plaintiffs, it was contented, that the agreement respecting the coal could not operate as a satisfaction of the note in question, without a delivery, and acceptance in fact, of the coal.
On the part of the defendant, it was insisted that there was an actual acceptance of the coal; and if not, there was, at least, a tender and refusal to receive, which was equivalent to an acceptance.
[The jury found a verdict for the defendant.] Hopkins and Riggs, for the plaintiffs. Hamilton and Evertson, contra.
THOMPSON, J. The first point which presents itself for consideration, is the agreement set up by the defendant, as a satisfaction of the note. It is said that this agreement is a mere nudum pactum ; that there was no consideration; that it contained no mutuality, inasmuch as the plaintiffs did not agree to accept; that it contained no sufficient certainty, and was nothing more than a proposition to pay. But, on examination, I cannot consider this agreement so defective. The whole circumstances stated, show that the transaction was fair and honest, on the part of the defendant. The coal was to be delivered at 10 dollars per chaldron, which, according to the case, appears to have been the then market price. The consideration was the money due on the note in queslion ; and although no time is fixed for the delivery of
Coit v. Houston.
[*246) the coal, yet, in *judgment of law, they were to be
delivered immediately, or on demand. It appears to me, therefore, that this agreement contains all the essential requisites to a valid contract, and upon which an action might be sustained, in case of a refusal to deliver the coal. This being the case, it remains to be considered, whether this contract can be set up by the defendant, as a satisfaction for the note. I do not think the present case directly involves a determination of the abstract question, whether accord, without satisfaction, would be a good plea. As a general rule, or principal of law, as applicable to a plea of this kind, it has been frequently decided that a plea of accord simply, without satisfaction, would be bad. And the rule, I have no doubt, is a sound one, that it must appear upon the face of the pleadings, either that the party has actually received the thing pleaded, as a satisfaction; or that the contract set up as the substitute, shall afford him redress for the original demand. The leading reason which appears to govern almost all the cases, that determine that a plea of accord only is bad, is, that an action could not be sustained on the accord, on the ground of a nudum pactum. But this reason ceases, where the agreement set up as the substitute will sustain an action, and afford complete redress.
From an examination of the authorities, I think I am warranted in adopting as a general rule, that an agreement, in order to be an effectual plea in bar, must be executed and satisfied with a recompense in fact, or with an action, or other remedy to execute it and recover a recompense. (Plowd. 5, 11. Sir T. Jones, 168.) And in the case of Case v. Barber, (Sir T. Ryan, 450,) accord, without satisfaction, but with tender, was pleaded, and the court held it good; saying that formerly it was necessary that the agreement should appear to have been executed, yet of late, it had been held, that upon mutual promises, an action lies, and,
consequently, there being equal remedies on both  sides, an accord may be *pleaded without execution,
as well as an arbitrament. If I am correct, then, that
Coit v. Houston.
the agreement to deliver the coal was such a one as would sustain an action, and afford a remedy to the plaintiffs for their demand, it comes within this rule and decision. It is said, however, that these judgments have been overruled by later decisions. There is certainly much obscurity, and, perhaps, some contradiction, in the books, on this subject; yet for the authorities cited by the plaintiffs' counsel it does not appear to me that the great and leading principles contained in the above cases are materially contradicted. Most of these cases were decided on demurrer, either to the form of the plea, or the nature of the satisfaction disclosed by it.
In the case of Paine v. Martin, (2 Stra. 573,) the question came before the court on demurrer, and turned on the insufficiency of the covenant of acceptance.
In the case of Preston v. Chrismas, (2 Wils. 86, the judgment was given on the ground, that a release of the equity of redemption was no satisfaction in law.
In the case of James v. David, (5 Term Rep. 141,) the question arose on a demurrer to the plea which was accord without satisfaction, and the court (adjudged it insufficient.
In the case of Heathcote v. Crookshanks, (2 Term Rep. 24,) the decision turned on the question of nudum pactum and that the sum tendered was less than the original demand.
In the two cases cited from Cro. Eliz. (193, 304,) one was decided on the ground that the accord and tender was for a less sum than the original demand ; and the other was an action of debt on bond, and the accord and satisfaction set up, was a promise by parol to pay a sum of money at a day subsequent to the day mentioned in the bond, and was merely executory; and, being by parol, could not discharge the bond.
*I do not think the present case comes within [*248] any of the principles decided in those cases. The plea is tantamount to a plea of accord and satisfaction. There is no objection here to the amount of the satisfaction. The full principal and interest of the note were to be paid Vol. III.