Danziger v. Hoyt, 120 N. Y. 190; Palmerton v. Huxford, 4 Denio, 166; Baird v. United States, supra.

The plaintiff could not accept and use the check thus tendered conditionally without ipso facto assenting to the terms of the offer. Jaffray v. Davis, 11 L. R. A. 710, 124 N. Y.

Payment by third party.

Another exception to the general doctrine is established where the debtor gives and the creditor receives, in full satisfaction of the debt, a note indorsed or secured by a third party for a less sum than the amount of the original demand, it being held to be a good accord and satisfaction to bar a subsequent action for the balance. Varney v. Conery, 77 Me. 527: Boyd v. Hitchcock, 20 Johns. 76, 11 Am. Dec. 247; Dolsen v. Arnold, 10 How. Pr. 529; Brooks v. White, 2 Met. 283, 37 Am. Dec. 95.

164; Morehouse v. Second Nat. Bank of Oswego, 98 N. Y. 503.

If an offer of money is made to one upon certain terms and conditions, and the party to whom it is offered takes the money though without words of assent, the acceptance is an assent de facto, and he is bound by it.

terms, the same to be secured by mortgage that the sum so paid was to be in full satisfaction of the notes and mortgage of the defendant, that the same was performed by the defendant,-the court held that the case came within the rule established in Boyd v. Hitchcock, Kellogg v. Richards, and Brooks v. White, supra, that the agreement to accept, and the accepting, in satisfaction of a debt, the undertaking of a third person to pay a sum less than the debt, is upon a valid consideration.

And in Guild v. Butler, 127 Mass. 386, where acThe courts hold that where the money has been tion was brought upon a promissory note signed paid by a third person, the agreement to accept in by the defendant payable to the order of another behalf of the debtor money or a security for a party and by him indorsed to the plaintiff, the eviemailer amount in satisfaction of the whole is dence showed that the indorsers of the note were valid and binding, and will discharge the debt. indebted to the plaintiff and gave him their promGordon v. Moore, 44 Ark. 349, 51 Am. Rep. 606. issory note, and also as collateral security, three Where the plaintiffs who had a judgment against other promissory notes, one the note of a third the defendants to which interest had accrued for party, and the other two, notes of the defendant, ten years, received in payment and satisfaction a one of the latter being the one in question, the last sum in cash and notes of a third person for equal two being accommodation notes of which fact the sums, the notes being paid at maturity, the whole plaintiff was not aware, and only became acquaintsum received being less than the debt and interest, ed after the first note became due; that the plainthe court held, in proceedings to recover the bal- tiff had received a sum of money from the indorsance due under the judgment, that there was a ers for which a receipt was given promising to pay complete accord and satisfaction, the notes of a the sum received on demand, and the plaintiff's testhird party being a sufficient consideration. Rob- timony further proved receipt of a third person's erts v. Brandies, 44 Hun, 468. check which was paid, in consideration whereof he gave the payers (the makers of the first of the three collateral notes) a receipt for the sum received, which was less than the face of the note, in "release" of "all demands" on the note signed by them, and also a notice by the defendant to the bank not to honor the notes when due, of which plaintiffs had notice before they received the sum on account,the court held that the evidence of the discharge in writing, though not under seal, of the parties to the note upon which the payment on account was made, upon the payment of half of the amount thereof by the check of a third person, was competent to show an accord and satisfaction of their liability. Brooks v. White, 2 Met. 283, 37 Am. Dec. 95, followed.

So if the debtor gives his creditor a note, indorsed by a third person, for a less sum than the debt, but in full satisfaction of the debt, and it is received as such, the transaction constitutes a good accord and satisfaction. Varney v. Conery, supra, following Dolsen v. Arnold, Boyd v. Hitchcock, and Brooks v. White, supra; Dryden v. Stepheus, 19 W. Va. 1.

And in Whitsett v. Clayton, 5 Colo. 476, where the question was raised upon promissory notes given for a smaller sum and with a surety, payable at a future day, the creditor agreeing to accept the same in satisfaction of an old note for the full amount, provided he ascertained the surety to be sufficient, the new agreement being executed and tendered in pursuance of the agreement, and the tender being kept good, the court held the agreement valid and binding, and a complete accord and satisfaction, as it was beneficial to both parties. Billings v. Vanderbeck, 23 Barb. 546; and Kellogg v. Richards, 14 Wend. 116, followed.

Where the defendant, unable to pay, agreed to give plaintiff his note with two sureties for one half, which the plaintiff agreed to accept in full satisfaction, the note being executed, received, and paid at maturity, the court held this to be a good accord and satisfaction, and extinguishment of the debt, following Stafford v. Bacon, 1 Hill, 532, 37 Am. Dec. 366; Schmidt v. Ludwig, 26 Minn. 85; Mason v. Campbell, 27 Minn. 54.

Again in Bliss v. Schwarts, 64 Barb. 215, where the parties through their agents agreed upon a compromise whereby part was to be paid in cash and the balance, half in cash and half in note, a draft for the cash payment and note for the balance being given and a receipt that "the same was in full settlement" received, the court beld, the compromise as originally agreed upon not being literally carried out, that the case showed the receipt of a negotiable bill of a third party for part of the debt, and the defendant's note for the balance, which was a sufficient consideration for the discharge.

So in Boyd v. Hitchcock, 20 Johns. 76, 11 Am. Dec. 247. where the evidence showed that the credac-itor had accepted from the debtor promissory notes indorsed by third parties for a smaller amount than the original sum owing in satisfaction and discharge, the court held that the creditor had acquired a beneficial interest, and a valuable consideration and that therefore the transaction was not a mere nudum pactum, but an accord and satisfaction and discharge of the whole debt. Sheehy v. Mandeville, 10 U. S. 6 Cranch, 253, 3 L ed. 215.

Again in Schmidt v. Ludwig, supra, where the tion was upon three promissory notes, the amended answer stating that the notes with others were given as the consideration for real estate conveyed to defendant, who also executed a mortgage to secure the same, that the notes and mortgage were assigned, that subsequently the defendant agreed to sell the real estate, and an arrangement was arrived at between the parties whereby part of the consideration on the sale was to be paid to the defendant, and the balance to the plaintiff in certain sums part down and the balance upon other

And in Booth v. Smith, 3 Wend. 68, where the claim was in assumpsit, the defendants pleading

Reed v. Boardman, 20 Pick. 441; Donohue v. | cord and [satisfaction of a claim, when he has Woodbury, McDaniels v. Lapham and Touslee promptly, steadily, and continuously refused . Healey, supra; Bull v. Bull, 43 Conn. 455. so to do. Mr. Henry Thompson, with Messrs. Vanderpoel, Cuming & Goodwin, for respondent:

A party cannot be said to have made an ac

that an account had been stated between himself and the plaintiff whereby the defendant was found to be indebted to the plaintiff to whom he gave a promissory note made by third parties in his favor and indorsed by him over to plaintiffs, and that the same was received by the plaintiff for and on account and in full satisfaction of the rote first given by the debtor, and barred the plaintiff's action, the court held the plea good, even by way of accord and satisfaction if no part of the original debt had been paid prior to the acceptance of such note.

Day v. McLea, L. R. 22 Q. B. Div. 610; Miller v. Davis, cited in L. R. 22 Q. B. Div. 612; People v. Cortland County Suprs. 40 How. Pr. 53.

| money had and received for his use, and that the mode of obtaining the money became, on that account, immaterial, and the defense therefore unavailing.

To this ruling, however, Barbour, J., dissented, holding that the agreement to pay such smaller amount was conditional, “if” the plaintiffs would release their claim; and that, if able thereafter, they would make it up to a certain amount, and for that reason the payment of the sum specified entitled the defendants to a release, and further, that the money having been paid, all claims of the plaintiffs under the original contract were thereby fully satisfied and discharged. Bunge v. Koop, 5 Robt. 1.

Where an action was dismissed with costs which were taxed and paid by the check of the attorney and a receipt given therefor, and it was subsequently sought to charge the defendant with interest upon the amount of the costs, the court held So in Shaw v. Clark, 6 Vt. 507, 27 Am. Dec. 578, that there was a complete answer by way of ac- the defendant sought to free himself from liability cord and satisfaction, there being a new consider- by reason of the acceptance by the plaintiff of a ation, the fact of the attorney giving his personal sum of money, really and wholly the defendant's, check, upon which he alone would be liable being paid to the plaintiff by a third person as and by sufficient. Bidder v. Bridges, L. R. 37 Ch. Div. 406; way of purchase of his judgment debt, and acFoakes v. Beer, L. R. 9 App. Cas. 605, distinguished. cepted by the plaintiff in full satisfaction, the court And if a debtor gives his creditor a note in-held that the defendant was not discharged by dorsed by a third party for a less sum than the debt, (no matter how much less,) but in full satisfaction of the debt, and it is received as such, the transaction is a good accord and satisfaction. Varney v. Conery, 77 Me. 527.

way of accord and satisfaction.

Again in Harriman v. Harriman, 12 Gray, 341, where the defendant, a poor man unable to pay the plaintiff's claim against him, had paid a less sum in satisfaction under agreement with the

The same was the ruling of the court in Hans- plaintiff whereby the latter agreed "that if the decombe v. Macdonald, 4 U. C. C. P. 190.

fendant would raise and pay the plaintiff the sum of twenty dollars, he would receive the same in full satisfaction of the judgment," the court held that such payment did not free him from liability to pay the balance, the agreement being merely to accept a small sum in full of a judgment for a larger amount, without any agreement that if a stranger would lend the money he would accept it in full, or anything to show that it was known that any portion of the money had been borrowed, the raising implying no more than a proposition to collect it, or obtain it from his own funds.

Disputed claim.

Where the claim is not a money demand, or, if

But in Bunge v. Koop, 5 Robt. 1, 48 N. Y. 225, 8 Am. Rep. 546, where the action was to recover damages for the non-delivery by the defendants of certain bills of exchange sold by the latter to the former, the defense showed a demand of the amount which the defendants were unable to pay and alleged an agreement between the parties that if the defendants "should, and did induce their friends to raise and loan them" a smaller sum "and would pay the same to the plaintiffs, the latter would settle and compromise their alleged demand against the defendants for and upon receiving" such sum "to be raised as aforesaid, and would leave it entirely to the defendants' honor, whether they should at any time thereafter pay said plain-so, is unliquidated, or if liquidated is doubtful in tiffs any further sum or amount," and that the defendants borrowed the same from their friends and paid same to plaintiff upon "the understanding that the plaintiffs would receive the same as satisfaction of said claim," and further alleging that such agreement formed the inducement for the friends to loan and advance such sum, the court held the defendants liable as the agreement was made with the debtor alone and not with a third party, and therefore did not do away with the inefficiency of any payment by the debtor of a smaller amount in extinguishing a debt for a larger amount, following Harrison v. Close, 2 Johns. 448, 3 Am. Dec. 444: Seymour v. Minturn, 17 Johns. 169, 8 Am. Dec. 380; Dederick v. Leman, 95 Johns. 333.

The reasons for such conclusion were stated to be, that after the money was borrowed, it ceased to be the property of the lenders, and was converted into or exchanged for a mere debt of the borrower to them, that he was not their agent in paying it to his creditor, the lenders retaining no power to enforce, as they had no interest in enforcing, such payment, and further that the creditor could not, upon the loan, sue such debtor for

fact or law, any sum, no matter how small, given and received in satisfaction of any demand, no matter how large, will legally satisfy that demand as a compromise. Bull v. Bull, 43 Conn. 455; Tuttle v. Tuttle, 12 Met. 554, 46 Am. Dec. 701; Palmerton v. Huxford, 4 Denio, 167; Warren v. Skinner, 20 Conn. 562; Pierce v. Pierce, 25 Barb. 243; United States v. Child, 79 U. S. 12 Wall. 232, 20 L. ed. 360; Roach v. Gilmer, 3 Utah, 389.

The adequacy of the consideration will not in such case be inquired into by a court of equity. Reed v. Bartlett, 19 Pick. 273; Fisher v. May, 2 Bibb, 449, 5 Am. Dec. 626; Taylor v. Patrick, 1 Bibb, 168: Union Bank of Georgetown v. Geary, 30 U.S. Pet. 114, 8 L. ed. 66; Bull v. Bull, supra.

And for the purposes of consideration no personal property, except money, has any fixed value in law. Bull v. Bull, supra.

If there is a bona fide dispute as to the sum actually due, or a bona fide doubt or controversy as to whether anything is due, then an accord and satisfaction, or more properly speaking a compromise, may be established and held binding although there is a payment of a sum less than was claimed by the creditor, or even a sum less than an actual

Maynard, J., delivered the opinion of the court:

facts embracing the entire issue raised by the pleadings, and we are required to determine whether, upon the facts stipulated, the defendant has, as matter of law, established his defense. The plaintiff's demand was unliqui dated, but he alleged that his services were worth $670, and rendered a bill for that

And where, pending suit for $200, a receipt for $130 "in settlement of said case,” and agreeing that the action should be dismissed and no other claims was taken," the court held there was a suffi

The plaintiff has brought suit to recover a balance claimed to be due for his services as a physician, and the defendant relies solely upon the defense of an accord and satisfaction. The parties have agreed upon a statement of computation might be found due to the creditor. "In such cases" Bockes, J., in Farmers Bank of Amsterdam v. Blair, 44 Barb. 652, said: "it is not admissible to go behind the settlement with a view to determine which of the parties was right. Com-cient consideration, the settlement of a disputed promises are to be encouraged, because they pro- account, to bar any recovery of the balance of mote peace, and when there is no fraud, and the the claim. Brockley v. Brockley, 122 Pa. 1. parties meet on equal terms and adjust their dif- Again, where under the terms of the agreement ferences, the court will not overlook the comprom-between the parties services were to be rendered ise, but will hold the parties concluded by the the payment being such "as is mentioned in the settlement."

To the same effect is the ruling of the court in Taylor v. Nussbaum, 2 Duer, 302; Kercheval v. Doty, 81 Wis. 476.

A compromise has the effect of a judgment in the settlement of claims. It may, indeed, by a direct proceeding instituted for that purpose, be rescinded for fraud, but it cannot, any more than any other judgment, be attacked collaterally. Oglesby v. Attrill, 105 U. S. 605, 26 L. ed. 1186; Adle v. Prudhomme, 16 La. Ann. 343.

If there is a controversy between the parties as to the amount due, and the debtor tenders the amount which he claims to be due, but upon the condition that it shall be accepted in discharge of the whole demand, and it is accepted, there is an accord and satisfaction by conclusion of law, upon the principle being that one accepting a conditional tender assents to the condition. Perkins v. Headley, 49 Mo. App. 555.

annexed fee bill" which showed the minimum and maximum fees "less fifty per cent on the whole sum for such services as are rendered, and the actual cost at wholesale prices, and cost of compounding medicines used, payable at the expira tion of treatment and discharge of the patient and subject to the approval of the superintendent of the road and surgeon of the division" the accounts to be submitted, the court held that if on such submission such accounts were objected to, bona tide, and new ones made out for the reduced amount and substituted for the originals and presented to the creditor and accepted and receipted by him, there is a bona fide settlement of a disputed claim which is a good consideration for an accord and satisfaction. Union Pac. R. Co. v. Anderson, 11 Colo. 293, following Springfield & M. R. Co. v. Allen, 46 Ark. 217; Berdell v. Bissell, 6 Colo., 162,

And where the vendee of pine lands, upon the maturity of the purchase-money notes, informed the vendor that there was a shortage of a certain quantity of pine timber, and the vendor made a deduction on the notes, and the deeds were deliv

In Reynolds v. Pinhowe, 1 Cro. Eliz. 429, one of the earliest cases upon the question, where after a judgment for £5, the plaintiff on receipt of £4, assumed to acknowledge satisfaction of the judg-ered, it was held to be a complete accord and satisment before a given day, and this was held good as it was a benefit to the plaintiff to receive money without suit or charge, and prevented a writ of error by which the whole judgment might have been avoided.

And in Cool v. Stone, 4 Iowa, 219, the court stated that the general rule did not apply to cases where the sum was unsettled, unliquidated, and not agreed. In this case, however, the point turned upon the question of an account stated and not upon an accord and satisfaction.

faction; and the vendee could not in an action for the balance of the purchase money set up a counterclaim of shortage of timber on the ground that he afterwards ascertained the shortage to be of greater extent. Woodford v. Marshall, 72 Wis. 129.

The same conclusion was arrived at in Vermont Baptist State Convention v. Laad, 59 Vt. 5, where there was a dispute between an executor and a legatee as to the amount of interest due on a legacy, on account of the expense and delay caused by a long litigation carried on for the protection of the property of the estate, an acceptance by the legatee of a sum less than the amount due on the legacy being held an accord and satisfaction, the payment being made upon the express condition that it should be in full for the balance due, the money being accepted without protest under such condition.

And the like doctrine is announced in Cole v. Champlain Transp. Co. 26 Vt. 87; McDaniels v. Lapham, 21 Vt. 222; and McDaniels v. Bank of Rutland, 29 Vt. 230, 70 Am. Dec. 406.

So the settlement of a disputed claim, by pay. ment of a sum less than the demand, to one of the joint creditors, is a bar to an action on such claim, and a complete accord and satisfaction. State v. Story, 57 Miss. 788.

So where the account between the plaintiff and defendant was disputed under circumstances which showed an account between the parties for goods gold and delivered, the defendants pleading payment, and accord and satisfaction of the account by the receipt and acceptance by the plaintiffs of the defendants' draft for the amount less certain deductions claimed by the defendants on account of damaged goods, of which fact the defendants had acquainted the plaintiffs, who drew on them for the full amount, the defendants returning the draft indorsed "Amount incorrect. Will remit," the plaintiffs afterwards writing defendants to know what they intended to do, or to send the money, in reply to which the defendants sent draft for the smaller amount "in payment of invoice," which was received and collected by the plaintiffs, who sued for the balance, the court held the defense good and a verdict for the defendants correct, as the draft being sent for what the defendants considered due on a disputed account the plaintiffs were precluded by their action from say-making an estimate of its quantity, character, and ing that it was not a settlement, as they were bound either to accept or reject it in toto. Hills v. Sommer, 53 Hun, 392, following Looby v. West Troy, 24 Hun, 78; Grinnan v. Platt, 31 Barb. 328.

The compromise of a disputed matter binds both parties. Long v. Shackleford, 25 Miss. 559.

In Hemingway v. Stansell, 106 U. S. 399, 27 L. ed. 245, where the plaintiff had completed his work, and the chief engineer of the board inspected it,

value, with which estimate the board was dissatisfied and appointed a special engineer to remeasure it, his estimates showing a smaller sum to be due to the plaintiff, with which the latter was dissatis

So in Simmons v. Almy, 103 Mass. 33, where the action was for board of the defendant, who pleaded a receipt "in full" for the amount due, “and of any and every" claim in plaintiff's favor up to a certain date, and in settlement of an action then pending, the court held the receipt conclusive as an accord and satisfaction of a disputed and un-tending that his agent had special instructions not liquidated claim.

And in Childs v. Millville Mut. M. & F. Ins. Co., 56 Vt. 609, where the amount in dispute was in received payment thereof, the proceedings were final spect to a fire policy upon which an amount had been paid upon cancellation, the parties having disagreed as to the amount due to the plaintiff and the latter having written the defendant to send "such amount as you feel inclined, which shall be accepted in full satisfaction of my claims for return premiums against your company," the company sending in response a certain sum which was retained by the plaintiff.-the court held that there was an accord and satisfaction.

So in Bryant v. Proctor, 14 B. Mon. 451, where the facts showed an agreement between the parties whereby they were to become jointly interested in a gold adventure which was to continue for three Again in Brick v. Plymouth County, 63 Iowa, years, one party agreeing to advance the money 462, where the plaintiff's bill against the county and the others to proceed to work out the adven- was presented to the board of health who approved ture, one of the latter afterwards abandoning the the same and handed it down to the supervisors arrangement, a compromise was arrived at, but the who allowed a much smaller sum and rejected the plaintiff brought suit to set aside the compromise residue, the plaintiff receiving the amount allowed and to recover the balance,-the court admitted the with full knowledge of the rejection of the balgeneral rule of law as established by the cases but ance, the court relying upon the case of Wapello held that it did not apply to cases where the settle-County v. Sinnaman, supra, rejected his claim for