Smith v. Elrod , 122 Ala. 269 ( 1898 )

DOWDELL, J.

— While it is a general rule that an accord, in order to operate as a discharge of a debt, must be executed, yet it is well settled that a creditor may accept the mere promise of the debtor to perform some act in the future in satisfaction of the debt, and where such is the case the satisfaction is good and the debt extinguished without performance. — 1 Am. & Eng. Encyc. of Law (2d ed.), 423; Knowles v. Knowles, 128 Ill. 110; Potts v. Polk Co., 80 Iowa 401; Averill v. Wood, 78 Mich. 342; Oregon Pac. R. R. Co. v. Forrest, 128 N. Y. 83; Babcock v. Hawkins, 23 Vt. 561. That the plaintiff accepted the delivery of the saw mill machinery to him and the defendant’s promise to deliver the 20,000 shingles by March 1, 1896, and to perform the other stipulations in full satisfaction of the notes and accounts, and that defendant made the delivery and promises with this understanding, is, we think, made manifest by the undisputed evidence that plaintiff told defendant he would instruct bis wife to deliver the notes to him and he could call on her at any time and get them, and that one of them was in fact surrendered to defendant by the wife. The accord was executed in so far as its execution was necessary to the satisfaction of the debt, by the delivery of the machinery and the promise to perform the other acts, and was a complete bar to any action on either the notes or the accounts, unless rescinded for sufficient cause. The evidence fails to show any rescission, or offer to rescind, such as would revive the original cause of action. Indeed, there is no replication to the special plea of accord and satisfaction setting up any rescission or offer to rescind, and therefore no issue of that character raised, although evidence was admitted tending to-show a cause of rescission based upon the fact that the property delivered to plaintiff in pursuance of the accord was, at the time, subject to a mortgage which had been given by a third person before defendant became the owner of the property. But the evidence was insufficient, even if relevant under the pleadings, to show an actual rescission or offer to rescind. Hence, the facts shown by the undisputed evidence constituted a complete defense to the action and would have authorized a judgment in defendant’s favor, if they had been properly pleaded. But there is a fatal variance between the plea of accord and satisfaction and the proof. The plea avers only that defendant delivered to plaintiff, and the latter accepted in satisfaction and discharge of his claim, “a saw mill outfit and its equipments, including engine and boiler and shop tools,” and omits all reference to the other terms of the accord, namely, the. promise of defendant to deliver 20,000 shingles by March 1, 1896, and to perform other stipulated acts in the future, the acceptance of which promises by the plaintiff, together with his acceptance of the saw mill machinery, was, as has been shown, to be the satisfaction of the debt. The variance was fatal and must prevent a recovery under this plea. There is no evidence in the record in support of the other special pleas, and there was no plea of the general issue. The record shows that leave was granted the defendant to file a plea of the general issue, but fails to show that such plea was filed. The facts in evidence relating to tlie accord and satisfaction Avere not admissible in'support of the plea of payment. In tlie absence of a special replication to tlie plea of accord and satisfaction, setting up a rescission, or offer to rescind, and a cause of rescission, the mortgage Avas not relevant to any issue in the case, and. the objection of defendant to its admission should have been sustained. But 'the cause Avas tried by the court Avithout the intervention of a jury, and since, under the eAdclence and pleadings, the plaintiff Avould have been entitled to a verdict even if this evidence had been excluded, its admission avus error Avithout injury, and cannot be a ground of reA^ersal.

Affirmed.

The opinion in this case Avas prepared by Brickell, C. J. and is adopted by the court. Justices Haralson and Tyson agree to the affirmance of the judgment of the court beloAV, but do not concur in the reasoning in the opinion on the question of variance, holding that the defendant’s plea avus not proved.