Swaim v. . Swaim , 14 N.C. 24 ( 1831 )

Upon non assumpsit pleaded, the case was that the defendant had sold the plaintiff a tract of land, and had executed a bond to make a title at a future period. The plaintiff gave his promissory note to secure the purchase money, and made some partial payments. (25) Afterwards it was discovered that the defendant had no title to the land, and it was agreed that the bond of the defendant, as well as the note of the plaintiff, should be canceled, and that arbitrators should determine whether the defendant should return to the plaintiff the money which the latter had paid upon the note. His Honor, thinking that upon these facts the plaintiff was not entitled to a verdict, directed a nonsuit to be entered. If money be paid on a special agreement, which is not performed, and cannot be, the party paying may either sue on the contract or, in disaffirmance of it, he may bring assumpsit for money had and received to his use. The plaintiff then could have recovered in this action when the defendant failed to convey the land. Has anything since occurred to prevent him? The new agreement to refer the matter to arbitration, we think, does not. It was only a mode stipulated between the parties to ascertain the amount of the plaintiff's demand without going to law. It did not extinguish the plaintiff's original right. That was still recognized as existing. If there had actually been an agreement on the part of the defendant to give a certain thing in satisfaction, it would not have barred the plaintiff, unless the thing agreed on had been delivered and accepted. An accord without a satisfaction is nothing. The plaintiff's action is not destroyed by an agreement which merely gives him another action of the same kind for the same demand.

PER CURIAM. Judgment reversed.

Cited: Williams v. Mfg. Co., 154 N.C. 209.

(26)