was satisfied and was entered on file by the plaintiff's authority. The petition alleged knowledge of these facts when the judgment by default was taken; the appellee admitted recovery and payment of such smaller sum consenting to a modification of his judgment against the appellant to such extent, and upon the trial it was proved that the appellant was a surety together with the person released. Upon these facts the court held that the payment of such smaller sum and the actual execution of a release with power of attorney to the clerk to enter upon the margin of the record a full satisfaction of the judgment, operated as a full and effectual discharge and satisfaction of the debt, and a valid and irrevocable act.

So a payment to one of several joint creditors, or an accord and satisfaction with one of the plaintiffs, is good without showing that the plaintiff who made the settlement had authority from the others to make it. State v. Story, 57 Miss. 738; Wallace v. Kelsall, 7 Mees. & W. 264; Husband v. Davis, 10 C. B. 645; Morrow v. Starke, 4 J. J. Marsh. 367; Wright v. Ware, 58 Ga. 150; Weston v. Weston, 35 Me. 360.

Liquidated demands.

The courts have held that the payment of taxes which are a lien on mortgaged premises, by a mortgagor, may be a good consideration for a promise by a mortgagee, holding a mortgage standing subsequent to the taxes, to relinquish part of his mortgage debt, the court admitting the general rule and its exceptions. Day v. Gardner, 42 N. J. Eq. 199.

Where an administrator who held a joint note as assets of the intestate's estate, compromised with ore debtor by accepting part of the sum agreed upon from such debtor, and the other part from a third party, under circumstances sufficient to justify the inference that it was received as a discharge, the court held that the debt was extinguished. Wilks v. Slaughter, 49 Ark. 235, following Gordon v. Moore, 44 Ark. 349, 51 Am. Rep. 606; Pettigrew Mach. Co. v. Harmon, 45 Ark, 290.

The same principles were recognized and applied by the court in Hastings v. Lovejoy, 140 Mass. 261. in the case of an oral agreement, between a landlord and tenant after the execution of a lease, to accept a less rent, the consideration being a change in the business position of the defendant which might be of advantage to the plaintiff and of detriment to the defendant, should the plaintiff fail to keep his promise.

And where a promissory note was made out payable in installments with a proviso that upon punctual payment a less sum would be accepted, the court held that the payment of the smaller amount bound the creditor even though default had been made. Longworth v. Askren, 15 Ohio St. 370.

Payment less interest.

The question whether or not the payment of the principal extinguishes all claim for interest was raised in Fake v. Eddy, 15 Wend. 76, and it was held that where interest is made payable by the terms of the contract, its collection might be enforced, even though the principal of the debt had been paid.

Cumber v. Wane, 1 Smith, Lead. Cas. 9th Am. ed. 614; People v. Buffalo State Asylum for the Insane, 96 N. Y. 640; Danziger v. Hoyt, 120 N. Y. 190; People v. Queens County Suprs. 33 Hun, 305; Brooks v. Moore, 67 Barb. 393; Farmers Bank of Amsterdam v. Blair, 44 Barb. 652; Gates v. Steele, 58 Conn. 316; Hunt v. Taft, 100 Mass. 91; Baum v. Buntyn, 62

Where, however, interest is allowed, not as a part of the contract, but as an incident and in lieu of damages, or as compensatory for some loss, by reason of a breach or default, it has been held that after payment of the principal, and its receipt in full, no action lies to recover interest, it being extinguished with the debt. Southern Cent. R. Co. v. Moravia, 61 Barb. 189.

So, where after a verdict and assessment of damages, a compromise was effected, a receipt being taken in full discharge "of damages and costs" the court held that the subsequent discovery by the plaintiff of an act under which the amount given by the verdict was to have interest added did not affect the discharge and settlement, as the verdict was the principal of the debt, which the statute directed should draw interest, and be inserted in the judgment that the statute declared a rule of damages by which the amount of a verdict might be increased by adding interest in the nature of a compensatory incident, and that in respect to it there was no element of contract, and nothing to change the rule, that the extinguishment of the principal extinguishes the interest and all right or claim to it. Ludington v. Miller, 6 Jones & S. 478.

Where the principal of the debt is paid and accepted in discharge, the action cannot be pursued for the interest. Simmons v. Almy, 103 Mass. 33; Tuttle v. Tuttle, 12 Met. 551, 46 Am. Dec. 701; Johnson v. Brannan, 5 Johns. 268, and infra.

And this is especially so where the principal is received in satisfaction. Wescott v. Waller, 47 Ala. 492; Tillotson v. Preston, 3 Johus. 229.

The case of Simmons v. Almy, supra, was one where, after payment had been made and received in full satisfaction and discharge of a claim for board, the plaintiff claimed interest as and by way of damages, which the court held could not be recovered as the case was not one where interest could in the first instance have been claimed.

In Johnson v. Brannan, supra, where the defendant pleaded payment of the principal due upon the note in full satisfaction and discharge of the plaintiff's claim, the court held the plea good, as the general rule ought not to apply to cases where the payment was accepted in satisfaction and exceeded the principal only falling a small amount short of the interest claimed, and that interest ought not to be considered as part of the debt within the purview of the rule.

Again in Tenth Nat. Bank v. New York, 4 Hun, 429, where the evidence showed payment of the principal due from the defendants to the plaintiff upon overdrafts, which was accepted by the latter as principal in full of the claims, and upon condition that the plaintiff's claim for interest should be waived, the court held that the case came within the rule that where a creditor receives the principal debt as such in full, no action lies for the interest; that there was no express agreement to pay interest and that it was recoverable, if at all, only as damages upon proof of some usage showing an implied contract, therefore the acceptance of the principal in full with a waiver of interest as a condition of the payment terminated all right of further action.

And in Tuttle v. Tuttle, supra, the defendant contended that the principal was received in full dis

Miss. 110; Brick v. Plymouth County, 63 Iowa, 462; Hinkle v. Minneapolis & St. L. R. Co. 31 Minn. 434; Roach v. Gilmer, 3 Utah, 389; Hilliard v. Noyes, 58 N. H. 312.

Where a sum certain is tendered in satisfaction of an unliquidated debt or demand, the creditor must choose between rejecting the pay

charge of the note, and that he refused to pay the interest, and the court held that the acceptance of the principal due upon the note with the under standing that it was in full discharge extinguished all claims for interest.

ment altogether and accepting it on the terms on which it is made, and cannot take the money and escape from the condition on the ground that he dissented at the time, or acted under a mistake of fact or law.

Hare & Wallace's notes to Smith's Leading Cases, 1 Smith, Lead. Cas. 6th Am. ed. 583;

satisfaction and payment thereof, the defendant having subsequently parted with the possession of the note and refused to fulfill his contract, the court held that the agreement was an accord executory; an agreement upon the sum to be paid and received at a future day in satisfaction of the note, and was to do something of advantage in law to the defendant, and also to the plaintiff, a case of mutual promises, one of which was the considera

that if the accord had been executed there would have been a satisfaction extinguishing the note, the case being taken out of the rule by which payment of a part is held insufficient to satisfy the whole of a liquidated indebtedness by the fact that the payment was to be made before the indebtedness fell due. Sonnenberg v. Riedel, 16 Minn. 83; Brooks v. White, 2 Met. 283, 37 Am. Dec. 95, followed.

And in Bryant v. Proctor, 14 B. Mon. 451, where the facts showed an agreement between the parties whereby they became jointly interested in a

Again where suit was brought to open an account against a deceased's estate and for payment of the balance due, the ground alleged being a mistake in the computation of interest on the account, and that the receipt given in full was by mistake, the court held that the payment, there being no controversy or dispute, was not conclusive by way of accord and satisfaction. Markel v. Spitler, 28 Ind. 488.

Payment before the debt is due, etc.

The payment of less than the whole debt, if made before it is due or at a different place from that stipulated, if received in full, is a complete accord and satisfaction. Jones v. Bullitt, 2 Litt. (Ky.) 49; Ricketts v. Hall, 2 Bush, 249; Smith v. Brown, 10 N. C. 580; Jones v. Perkins, 20 Miss. 139, 64 Am. Dec. 136; Schweider v. Lang, 29 Minn. 254, 43 Am. Rep. 202; Bolt v. Dawkins, 16 S. C. 198; Rockwell v. Taylor, 41 Conn. 55.

In Grant v. Hughes, 96 N. C. 177, the court regarded it as a well-settled rule, that if a debtor pay a less sum than is owing, either before the day it is due, or for the convenience of the payee or obligee, at a place other than that named, or upon any consideration advantageous to the payee or obligee, or as a compromise upon an honest difference as to the amount due, it is good as an accord and satisfaction, and binding.

So, where by mode or time of payment, different than that provided for in the contract, a new benefit is or may be conferred or a burden imposed, a new consideration arises out of the transaction and gives validity to the agreement of the creditor. Rose v. Hall, 26 Conn. 392, 68 Am. Dec. 402.

In Schweider v. Lang, supra, where the defendant as the payee of the plaintiff's note had agreed with the latter before the note became due to accept a less amount than the face of the note in full

years, one party making the advances, and the others working the adventure, and one of the latter subsequently abandoning the arrangement, a compromise was arrived at, which plaintiff sought to set aside and recover the balance due him, the court held that the general rule did not apply as the settlement had taken place before the expiration of the time agreed upon for the continuance of the contract.

Payment of costs and expenses.

Where the plaintiff, a judgment creditor, accepted from the defendant a smaller sum for debt and a certain sum for costs in satisfaction of such judgment, the court held that he was precluded from further recovery although the two combined did not amount to the original sum. Harper v. Graham, 20 Ohio, 105.

So where, pending an action the plaintiff and defendant agreed that upon payment of the costs by the latter the former would release him from all further liability, the costs being paid as agreed, the court held the agreement a good defense by way of accord and satisfaction. Baum v. Buntyn, 62 Miss. 110.

And where during the continuance of an action the parties arranged for defendant to pay a less sum and the costs and expenses, which he was not bound to pay, in satisfaction of the debt, the court held that the payment of the same by the defendant amounted to a complete accord and satisfaction of the plaintiff's demand.

Again, in Mitchell v. Wheaton, 46 Conn. 315, 33 Am. Rep. 24, where, pending the action, the plaintiff agreed to accept a less sum than the full amount of the debt together with the costs and expenses of the suit in full satisfaction and discharge, the defendant paying the amount agreed to be taken in satisfaction of the debt, and, upon the amount of the costs and expenses being ascer tained, tendered the same to the plaintiff, who refused them, but which were subsequently received by his attorney, the plaintiff contended that the receipt of such smaller sum was no satisfaction of a debt for a larger amount, as there was no consideration, but the court held that there was a consideration additional to the payment of such less amount, the agreement to pay and the subsequent

Palmerton v. Hurford, 4 Denio, 166; Looby v. West Troy, 24 Hun, 78; McDaniels v. Lapham, 21 Vt. 222; McDaniels v. Bank of Rutland, 29 Vt. 230, 70 Am. Dec. 406; Touslee v. Healey, 39 Vt. 522; Potter v. Douglass, 44 Conn. 451; Bull v. Bull, 43 Conn. 455; Berdell v. Bissell, 6 Colo. 162; Union Pac. R. Co. v. Anderson,

payment of the costs and expenses which were not owing by the defendant at the time the agreement was arrived at, as they were dependent upon the result, being a sufficient new and valid consideration for the promise.

To the same effect is the decision in the case of Baum v. Buntyn, 62 Miss. 110, where the evidence showed that the plaintiff and defendant had, after action brought, settled the same upon payment of the costs, which the former accepted in satisfaction of his claim and demands.

Debtor's note or check.

A note given will, on general principles, discharge an original indebtedness, whenever agreed to be taken by the creditor in full satisfaction of such indebtedness. Sard v. Rhodes, 1 Mees. & W. 153: Pulliam v. Taylor, 50 Miss. 251.

So, where the defense was that before action brought defendant made and delivered to the plaintiff three promissory notes, and that plaintiff "then accepted and received the same in full satisfaction and discharge of the sum of money and causes of action," the court held the defense good as a complete accord and satisfaction. Loomer v. Marks, 11 U. C. Q. B. 16.

And where the defendants contended that subsequent to their account with the plaintiff they had executed and delivered to them promissory notes for a smaller sum than the original debt, secured by a chattel mortgage, and that the same had been paid at maturity, the mortgage discharged of record and the account settled in full, the court held this sufficient to constitute a valid defense by way of accord and satisfaction for the balance. Jaffray v. Davis, 11 L. R. A. 710, 124 N. Y. 164, reversing 48 Hun, 500.

In Re Dixon, 2 McCrary, 556, where the note of the debtor was taken prior to his acquisition of the homestead and subsequent thereto, upon agreement between the parties, five new notes were taken in order, and for the convenience of the creditor, so as to enable him to sue before a justice of the peace, the old note being canceled, the court held that the new notes given for smaller amounts were a complete accord and satisfaction of the old note, being given for a valuable consideration.

So in Phillips v. Berger, 2 Barb. 612, where the proceedings were to compel specific performance of an agreement of a personal contract under which the plaintiff, the owner of a judgment on which a creditor's bill was filed, agreed to accept a less sum and costs from the defendant as a compromise of the claim, the agreement being in the form of instructions from the plaintiff to his agent, with a memorandum stating that he agreed to compromise the claim by accepting the defendant's note, the court beld such agreement whether one of purchase of the judgment, or one by which the plaintiff agreed to receive security for less than the amount of his claim and discharge, was valid and binding on the plaintiff.

11 Colo. 293; Springfield & M. R. Co. v. Allen, 46 Ark. 217; Lister's Agr. Chemical Works v. Pender, 74 Md. 15.

Where, as in this case, the protest is not made at the time of the payment, but the payment is accepted and suit afterwards brought, the above rule applies a fortiori.

| agreement with the plaintiff, were a valuable consideration for his discharge from liability upon the copartnership notes given for a larger amount, the court held that there was ample consideration, by the giving of the individual notes, for the debt of the copartnership, for the release from further liability and the discharge of the defendant from the partnership debt, something being parted with and something received, beyond the security which the plaintiff bad; however slight it might have been, it was an advantage and benefit conferred, upon which a sufficient consideration might be founded. In Goddard v. O'Brien, L. R. 9 Q. B. Div. 37, where the plaintiffs agreed to accept a less sum în discharge taking the defendant's check for such smaller sum and giving a receipt, stating that the amount was received "by cheque," and was "to be in settlement of account for the larger amount," on said cheque being "honored," the court held that the plaintiffs' claim for the balance of the account was gone and upheld the defendant's plea of accord and satisfaction, stating that the original doctrine as established by the case of Cumber v. Wane, 1 Strange, 426, had been much qualified, and relying upon and following the decision in Sibree v. Tripp, 15 Mees. & W. 23, to the effect that the acceptance of a negotiable security for a smaller amount may, in law, be a satisfaction of a debt of a greater amount, and governed the case then before the court as a cheque was a negotiable security.

The same effect was arrived at in Wells v. Morrision, 91 Ind. 51; and Listers Agr. Chemical Works v. Pender, 74 Md. 15,-in the latter case the court stating that the question whether or not the cheque was paid in full satisfaction, and accepted as such, was one for the jury to be determined by the court below.

The contrary was, however, held to be the effect of such notes in the following cases:

Where the action was brought to recover the balance due upon an account, for which a note had been received, the court held that except the note was given in express terms as payment the original debt was not extinguished, and that the part payment thereof by one of the debtors did not discharge him from the balance. Griffith v. Grogan, 12 Cal. 317.

So the courts have held that the giving of a note and the taking of a receipt for the amount supposed to be due does not constitute an accord and satisfaction of an amount afterwards found to be due in addition. Stengel v. Preston, 89 Ky. 616.

Hills v. Sommer, 53 Hun, 392; Baird v. United States, 96 Ú. S. 430, 24 L. ed. 703; Roach v. Gilmer, 3 Utah, 389; Donohue v. Woodbury, 6 Cush. 148, 52 Am. Dec. 777.

The cases do not rest their rulings on the ground that receipts in full were given in them, but on the acceptance of the quid pro quo.

larger one, the parties met and the plaintiff agreed to take the defendant's note for another sum less than the real balance due upon the account, the facts showing that the defendant wished to settle and asked the plaintiff to take his note for a given amount, to which the latter assented, the court held, there being no controversy and no consideration for the agreement, that the essential elements of an accord and satisfaction were wanting, and followed its ruling in Otto v. Klauber, supra.

And in Warren v. Skinner, 20 Conn. 559, where the defense was an agreement by the plaintiff to accept half of the amount of the defendant's promissory note in payment and discharge of the debt due and payment of the same accordingly, the court held there was no defense, as the mere fact of the debtor's being in poor circumstances and suspending payment was no consideration for such promise.

In the case of Platts v. Walrath, Hill & D. Supp. 59, where the plaintiff, as the maker of a note, gave collateral security by way of mortgage for the same, the defendant deducting a certain amount from the debt, making a further advance loan which, becoming due, defendant forbore pressing in consideration of the plaintiff's giving him his note for the amount deducted with interest thereon, the court held there was no satisfaction of the debt by the giving of the mortgage.

The remarks of the judge in this case were considered quite obiter, and its decision as contrary to the general run of the cases, in the case of Jaffray v. Davis, 11 L. R. A. 710, 124 N. Y. 164.

Further security.

So the giving of further security for part of a debt or other security, though for a less sum than the debt and acceptance of it in full of all demands, is a good accord and satisfaction. Le Page v. McCrea, 1 Wend. 164, 19 Am. Rep. 469; Boyd v. Hitchcock, 20 Johns. 76, 11 Am. Dec. 247.

Where the debtor's wife had joined in the mortgage given by her husband, in order to effect the compromise and settlement, thereby releasing her inchoate right to dower, the court held that there was a sufficient consideration to support the new agreement. Keeler v. Salisbury, 33 N. Y.648.

And where the security was in the nature of a guaranty for a considerable larger sum than the guarantor was originally liable for, the court held it a sufficient consideration for the acceptance of less than the original debt. Maddux v. Bevan, 39

Md. 499.

But in Rising v. Cummings, 47 Vt. 345, where it was sought to make the defendant liable for the debt of a third person, by reason of a promise and certain payments made by his wife on account thereof, the court held that a proposition to furnish a specific security in payment of the debt of auother, which security was never furnished, did not operate as a payment and extinguishment of the debt, and was therefore a mere accord or unexecuted agreement and no discharge.

The surrender and cancellation of note. The surrender of a note by the payee to the maker has been held to discharge the claim so as to bar all recovery of the balance due. Ellsworth v. Fogg, 35 Vt. 355; Kent v. Reynolds, 8 Hun, 559.

In Silvers v. Reynolds, 17 N. J. L. 275, where the

Hills v. Sommer, Baird v. United States, McDaniels v. Lapham, Touslee v. Healey, Donohue v. Woodbury, Potter v. Douglass, Brick v. Plymouth County, Hilliard v. Noyes, and Hinkle v. Minneapolis & St. L. R. Co. supra.

The plaintiff by indorsing and cashing this check, which was enclosed and referred to in

question arose upon the tearing off of the name of one of two joint and several debtors from promis. sory notes, and accepting a sum less than the original demand from one in discharge of the debt, the court held that such cancellation by tearing off the name amounted to a technical release of the debt; that the fact of the instrument being destroyed was a safer and better discharge than even a release by deed, as such release might be lost and then the evidence of discharge would be gone, but if the evidence of indebtedness were destroyed there could be no recovery, and there would therefore be an irrevocable discharge.

Again in Draper v. Hitt, 43 Vt. 439, 5 Am. Rep. 292, where the defendant, pursuant to an agreement of the parties, executed his note for $40, and delivered it to the plaintiff who received it in satisfaction of a note he then held against the defendant of $60, and at the same time surrendered the old note for the larger amount, the court held that the surrender of the note to the maker to be canceled was equivalent to a discharge and release, and that there was a sufficient accord and satisfaction of the old debt.

In this case the court followed the ruling of the court in Ellsworth v. Fogg, supra, where the court held that the acceptance of a promissory note of part of the amount due upon it, in satisfaction and discharge of the whole note, and the surrender of the note by the holder to the maker to be canceled, was a full discharge of the note, but at the same time recognized the general rule.

So in Murray v. Snow, 37 Iowa, 410, where the debtor made a verbal contract to pay and the creditor to accept, fifty per cent in full satisfaction and discharge of their debts, which amount was paid by the former who obtained the creditor's receipt in full indorsed upon the back of the debtor's note, which was handed to him, and from which he tore his signature, the court, in an action for the balance of the debt, held that the claim was barred. The same was the ruling of the court in Norman V. Thompson, 4 Exch. 755.

But the contrary was the ruling in Reynolds v. French, 8 Vt. 85, 30 Am. Dec. 456, where the defendants had by certain representations made to the plaintiffs caused the latter to accept a less sum in satisfaction and discharge of certain promissory notes, and to surrender the same, the court held that such part payment was no discharge to an action for the balance due upon the notes, the transaction being fraudulent.

Other than money.

a smaller sum of money, yet if any other personal While a liquidated amount cannot be satisfied by property is received in satisfaction it will be good, no matter what the value. Bull v. Bull, 45 Conn. 455.

In Brooks v. Moore, 67 Barb. 394, the plaintiff alleged that the property of the defendant was to be taken and applied on the indebtedness of the defendant at stated prices as far as it would pay the same, the balance to be paid by the defendant, or secured by him, and the defendant contended that it was received by the plaintiff as payment of the whole debt, the court held the question one of fact as to how the property was to be applied, whether at stated prices, or as a whole, if in the former manner, its application would be as EO

Knowles v. Toone, 96 N. Y. 534. See also Meriden Britania Co. v. Zingsen, 48 N. Y. 247; Clark v. Mix, 15 Conn. 152; Hine v. Bowe, 114 N. Y. 355; Mott v. Richtmyer, 57 N. Y. 49; Rogers v. Smith, 47 N. Y. 324; Mal

much money on account, leaving a balance payable; if in the latter manner, then it would be in extinguishment.

So it has been held that the acceptance and settlement of the amount due on a judgment in consideration of a hundred bushels of oats, is as binding upon the parties as if the account had been paid in full. Dimmick v. Sexton, 125 Pa. 334.

And in Very v. Levy, 54 U. S. 18 How. 345, 14 L. ed. 173, the court stated that when the time of payment is not anticipated, the law deems the delivery of specific articles a good satisfaction of a money debt, because it will intend them to be more valuable than the money of the creditor who has consented to the arrangement.

Again in Neal v. Handley, 116 Ill. 418, 56 Am. Rep. 784, the court held, that the general doctrine did not apply to the case of a judgment debtor who pays to the judgment creditor a sum of money and the choice of his cows, and receives a receipt in full for the amount of the judgment the receipt being forthwith entered on the judgment docket, such receipt being held a satisfaction and discharge of the debt.

Where the payment is not made in money but in merchandise or property in gross which is accepted in full for a debt, the debt is extinguished and a complete accord and satisfaction established. Gavin v. Annan, 2 Cal. 494.

The same is the ruling of the court in Gaffney v. Chapman, 4 Robt. 275.

In Jones v. Bullitt, 2 Litt. (Ky.) 49, where the question was raised upon a confessed judgment, the defendant contending that the plaintiff had accepted salt in satisfaction and discharge of his claim, the court admitted the general rule of law as established by the cases but held that it did not apply to a case where there is an agreement to accept something else, though of less value, in satisfaction of the debt, as the agreement in such case is not without consideration, the parting with the article being a sufficient consideration for its acceptance in satisfaction of the demand.

So in Merchants' Bank v. Davis, 3 Ga. 112, the court upheld a contract between the execution creditor and his insolvent debtor to release and discharge the latter from all further liability in consideration that he would pay a certain proportion of the debt by his personal services and labor. And so in Neal v. Handley, 116 Ill. 418, 56 Am. Rep. 784, where upon a bill filed to set aside a sheriffs' sule and deed, the evidence was contradictory as to whether or not a certain sum of money and a cow were taken in full satisfaction of the judgment, the receipt saying that it was in full, the court held that the payment of such less sum of money and the taking of a cow operated as a full discharge and accord and satisfaction of the original debt, such receipt being given and received, and delivered to the clerk of the court by the appellee, and pasted by him in the judgment docket, upholding the law as stated in Pinnel's Case, 5 Coke, 117, as follows: "And it was resolved by the whole court that payment of a lesser sum on the day, in satisfaction of a greater, cannot be any satisfaction for the whole, because it appears to the judges that by no possibility a lesser sum can be a satisfaction to the plaintiff for a greater sum; but the gift of a horse, hawk, or robe, etc., might be more beneficial to the plaintiff than the

The plaintiff having accepted, indorsed, and cashed the check thus sent to him on condition, has accepted a less sum as payment of a disputed demand, and executed a receipt in full for the same.

money in respect of some circumstances, or otherwise the plaintiff would not have accepted it in satisfaction."

So where the debtor owed a considerable sum to the creditor and the latter agreed to accept two drafts and a stock of clothes at fair market prices and cassimeres manufactured to order, the whole being for less than the amount of the indebtedness, the transaction being completed, the court held it was a complete accord and satisfaction. Rose v. Hall, 26 Conn. 392, 68 Am. Dec. 402.

And the acceptance of a collateral thing, if of any legal value, in satisfaction of a pre-existing debt, is a good defense by way of accord and satisfaction. Williams v. Stanton, 1 Root, 426; Blinn v. Chester, 5 Day, 360; Anderson v. Highland Turnp. Co. 10 Johns. 86.

But in Howard v. Norton, 65 Barb. 161, where the question arose upon a receipt given by the plaintiff to the defendant, the facts showing trade transactions between them upon which a sum was due the plaintiff, who asked for payment, and was met by an offer from the defendant, who was arranging with his creditors to pay a certain percentage and the balance when able, suggesting thas plaintiff should take sheep towards the payment of such percentage, the sheep being taken and the balance of the percentage paid in cash, the plaintiff giving a receipt showing a payment of a given sum "in payment" of the account, the court held that the receipt was not conclusive as an accord and satisfaction, as the sheep were only received as part payment of the percentage, they having been received at a certain figure per head, and on this ground distinguishable from the case of a horse or a cow being taken in payment.

In this case the court stated that when the debtor delivers to the creditor, and the latter receives property at a fixed price, the same being less than the debt due, there is no accord and satisfaction, even though a receipt be given in full payment of the debt, the delivery of such property being tantamount to the payment of so much money, and that it is only when the property itself is received in payment without any price being fixed that it is a complete accord and satisfaction. Howard v. Norton, supra.

So in Howe v. Mackay, 5 Pick. 44, where the action was in debt upon a judgment, the defendant pleading payment generally, the evidence being a deed of conveyance of real estate, with circumstances tending to show that the same was given and received in satisfaction of the judgment, the court held that the stopping of the levy, the acceptance of the deed, the relinquishment of dower by the debtor's wife, the creditor's attorney considering the matter settled, and the mortgaging of the land by the creditor, were all strong facts in favor of a discharge and satisfaction by an absolute conveyance, but not proof of a discharge of the balance; that in order to bar such action it must be shown that the property was received in payment of the whole amount due, or an agreement to receive it as such.

And in Overton v. Conner, 50 Tex. 113, where the defense was the taking of lumber in settlement and discharge of the claim, the court held that before such defense could be sustained it must be shown that the agreement had been fully consummated and completed.