Lawrence v. Barker , 9 Daly 140 ( 1879 )

Van Brunt, J.

was evidence which required that the question as to whether a note or notes were received in payment, should have been submitted to the jury.

It may be very true that the evidence of the defendant upon this point, considering the manner and the circumstances under which it was given, should have been looked upon with great suspicion, but this fact did not empower the court to take away from the jury the right to pass upon its credibility. But the plaintiff claims that as to the rent which fell due subsequently to the taking of the notes, it was not discharged by the transaction of the 17th of February, 1876, even- if the broadest construction is given to the defendant’s version of that transaction, upon the ground that covenants under seal, which are not yet broken, cannot be discharged by parol, and cites the cases cf Mitchell v. Hawley (4 Denio, 417), and Clough v. Murray (3 Robt. 16), as authorities.

These authorities do not hold that an accord and satisfaction if executed, even if in parol, is not a bar to an action upon covenants, even if thereafter broken. Mitchell v. Hawley simply holds that an accord executory is no bar. Clough v. Murray decides the same thing. It is true that the learned justice who wrote the opinion in that case uses language which bears the construction put upon it by counsel, but the authorities cited to support it fail to do so, and, indeed, the case of Allen v. Jaquish (21 Wend. 628), expressly holds that covenants under seal may be discharged by parol agreements, if fully executed, but if any part remains executory, so that the accord is not complete, it will not operate as a discharge.

The judgment must be reversed and a new trial ordered, with costs to abide the event.

J. F. Daly and Beaoh, JJ., concurred.

Judgment reversed and new trial ordered, with costs to abide the event.