Hosler v. Hursh ( 1892 )

Opinion by

Mb.. Justice Stebbett,

There was a verdict in favor of both defendants, in this case, subject to the opinion of the court on the following question of law reserved: “Whether, notwithstanding any finding of the jury, the plaintiff is not entitled to recover, in this action, from the defendants the sum of $8,046.30?” That question was afterwards disposed of by enteriftg judgment on the verdict in favor of the defendant J. B. Hursh, and judgment non obstante veredicto in favor of plaintiff against John Hursh, the other defendant, for the sum above named with interest. According to the ruling of this court in Robinson v. Myers, 67 Pa. 9, and Bank v. McCoy, 69 Pa. 204, 210, that was error for which the judgment must be reversed and a new trial ordered. In the last cited case, a verdict for defendant was rendered subject to the question of law reserved: “Whether upon all the facts.....the plaintiff is not entitled to recover?” Judgment, on the verdict for defendant, was afterwards entered on the reserved point; and, on writ of error, taken by plaintiff, that judgment was reversed. Speaking for this court, the late Mr. Justice Williams said: “Where a verdict is for the defendant, no question of law can be properly reserved, for no judgment can be entered in favor of the plaintiff non obstante veredicto, in case of a decision in his favor. ... We must therefore reverse the judgment and remit the record to the court below for a new trial.”

On the merits of the case, the contention of the defendant, J. B. Hursh, was that, on April 24, 1889, eleven days after this suit on the two notes was brought, he and the plaintiff entered into an agreement under seal, as follows:

“We, the undersigned, agree as follows: That J. B. Hursh pays to Joseph Hostler fifteen days after this date, $8,000, in cash, and $4,000 in securities at 5 per cent, one year after date, and to be satisfactory to said Joseph Hosier. The above is in lieu of two notes held by Joseph Hosier against John Hursh, maker, and J. B. Hursh as surety, and one note of J. & J. B. Hursh. The said Hursh to pay all my attorneys’ fees in this case. Witness our hands and seals the day above written.”

“ Witness, J. B. Hursh. (Seal)

“ Jambs H. Woodburn. Joseph Hostler. (Seal) ”

The “ two notes ” above mentioned are those in suit. The other is for $1,145 at one year from April 1,1889. The aggregate face value of the three notes is $8,486.62.

Testimony, tending to prove facts alleged in the offers recited in the first specification, was introduced by defendants. Without referring to the evidence in detail, it is sufficient to say it tended to prove that $3,000 in cash and $4,000, note of Daniel Shepp at one year with five per cent interest, to the order of and indorsed by J. B. Hursh and John Graham, were tendered to plaintiff within the fifteen days and refused by him, and further that defendant promptly offered to pay plaintiff’s attorney’s fees, but the attorney declined to settle with him. In short, the evidence tended to prove that the defendant promptly and in good faith tendered performance of everything required of him by the terms of the agreement, and plaintiff refused to accept. This was claimed to be a good defence in the nature of accord and satisfaction.

It cannot be successfully contended that the agreement was without consideration. It was under seal and that of course imports a consideration: Schmertz v. Shreeve, 62 Pa. 457; Building Association v. Hull, 135 Pa. 565. But, aside from that, there was other evidence of sufficient consideration to support the agreement. Part of the sum agreed upon was $3,000, cash, in fifteen days, the residue “ $4,000 in securities ” satisfactory to plaintiff, and the evidence shows that the $4,000 Shepp note, indorsed by Hursh and Graham, was satisfactory to plaintiff. Moreover, Hursh bound himself to pay plaintiff’s attorney’s fees connected with the pending suit.

It is well settled that accord and satisfaction is the substitution of another agreement between the parties in satisfaction of the former one, and an execution of the latter agreement. The two together form a complete har to any further action on the original claim; but neither without the other constitutes a good defence. Tender of performance can never take the place of satisfaction, unless accepted. Accord to be good must be in full satisfaction, and must be executed; readiness to perform is not enough: Am. & Eng. Encyc. of Law, 94, 95, and cases there cited. In the language of one of our own cases, “ the legal notion of accord is a new agreement on a new consideration to discharge the debtor. And it is not enough that there be a clear agreement or accord and a sufficient consideration, but the accord' must be executed. The plea must allege that the matter was accepted in satisfaction. Mere readiness to perform the accord, or a tender of performance, or even a part performance and readiness to perform the rest will not do: ” Hearn v. Kiehl, 38 Pa. 147.

It is no doubt true, as was held in Babcock v. Hawkins, 23 Vermont, 561, (cited by the learned president of the common pleas) that where the accord is founded on a new consideration and is accepted as satisfaction, it operates as such, and bars the remedy on the old contract. There is an obvious distinction between an engagement to accept a promise in satisfaction, and an agreement requiring performance of the promise. If the promise itself and not its performance is accepted in satisfaction, this is a good accord and satisfaction without performance. The agreement relied on in this case will not bear that construction. The defendants’ undertaking was to pay $3,000 cash, in fifteen days, and “ $4,000 in securities,” etc., The agreement then declares: “ The above is in lieu of the two notes,” etc. “ The above,” we think, refers not to the defendants’ undertaking or promise, as such, but to the $8,000 cash and $4,000 in securities and contemplates the payment of the one and delivery of the other. The agreement was not to accept defendants’ promise in lieu of the notes, but the specified sums in cash and approved securities. It contemplated the performance of the promise, and was therefore executory. The tender of performance, although made promptly and in good faith, was not satisfaction.

It follows from what has been said that the plaintiff’s 7th point, recited in the fifth specification should have been affirmed. It is unnecessary to consider other questions presented by the record.

Judgment reversed and a venire facias de novo awarded.