Field v. Aldrich , 162 Mass. 587 ( 1895 )

Allen, J.

If the correctness of the defendant’s general proposition be assumed, — namely, that where a promise or agreement itself, and not its performance, is accepted in satisfaction and extinction of a demand, it is good as an accord and satisfaction without performance, — the question remains whether the taking by the plaintiff of the agreement B with the shares of stock which were issued to him as trustee was intended by the parties to be of itself a satisfaction of the plaintiff’s claim against the defendant. By the terms of the agreement, the distribution of the capital stock was to be as follows: “ One fourth shall belong to the parties to whom Field has already assigned; one fourth each to said Field and said Aldrich; and the remaining fourth to the said Field as trustee, to be disposed of as hereinafter mentioned.” The provision as to the disposition of the remaining fourth was as follows: “ The said Field agrees to dispose of the fourth interest held by him as trustee to the best advantage possible, and apply the proceeds thereof as follows,” viz.: to repay the defendant’s debt to him ; to pay his own salary at a certain rate for a certain time ; and “ any surplus of proceeds of sale of said trustee shares, after meeting the above claims,- or any shares then unsold, shall be divided equally between said Field and said Aldrich.” In point of fact, according to the plaintiff’s testimony, the credibility of which was not questioned, he never sold any of these shares; he tried to sell them and did not succeed, although one hundred other shares were sold by one Williams.

In our opinion, the plaintiff did not assume the risk of being able to sell these shares. If he should sell them, he was to apply the proceeds in the manner specified. But if he should be unable to sell them after due attempt, then his claim against the defendant would remain in force, and upon his enforcing it, the shares unsold would belong equally to the plaintiff and to the defendant.

Judgment for the plaintiff.