ACCORD. In Contracts. A. satisfaction agreed upon between the party injuring and the party injured, which when performed is a bar to all actions upon this account; gene rally used in the phrase "accord and satisfac tion." 2 Greenleaf, Ev. 28 ; 3 Blackstone, Comm. 15; Bacon, Abr. Accord; 5 Md. 170.
It must be legal. An agreement to drop a criminal prosecution as a satisfaction for an assault and imprisonment, is void. 5 East, 294. See 2 Wile. 341; Croke, Eliz. 541.
It must be advantageous to the creditor, and he must receive an actual benefit therefrom which he would not otherwise have had. 2 Watts, Penn. 424; 2 Ala. 476; 3 J. J. Marsh. Ky. 497. Restoring to the plaintiff his chat, tell, or his land, of which the defendant has wrongfully dispossessed him, will not be any consideration to support a promise by the plaintiff not to sue him for those injuries. Ba con, Abr. Accord, A; Perkins, 749 ; Dy. . 75 ; 5 East, 230 ; 11 id. 390 ; 1 Strange, 426 ; 3 Hawks, No. C. 580 ; 2 Litt. Ky. 4g; 5 Day, Conn. 360 ; 1 Root, Conn. 426 ; 1 Wend. N. Y. 164; 3 id. 66; 14 id. 116. The payment of a part of the whole debt due is not a good satis faction, even if accepted, 2 Greenleaf, Ev. 28; 2 Parsons, Contr. 199 ; 4 Mod. 88; 3 Bingh. N. c. 454; 10 Mees. & W. Each. 367 ; 12 Price, Exch. 183 ; 1 Zabr. N. J. 391; 5 Gill, Md. 189 ; 20 Conn. 559; 1 Mete. Mass. 276; 27 Me. 362, $70 ; 39 id. 203; 2 Strobh. So. C. 203; 15 B. Monr. Ky. 566 ; otherwise, how ever, if the amount of the claim is disputed, Croke, Eliz. 429 ; 3 Mees. & W. Exch. 651; 5 Barnew. & Ald. 117 ; 1 Ad. & E. 106 ; 21 Vt. 223 ; 23 id. 561 ; 4 Gill, Md. 406; 4 Den. N. Y. 166; 2 Du. N. Y. 302; 12 Mete. Mass. 551, or contingent, 14 B. Monr. Ky. 451; and if the negotiable note of the debtor, 15 Mees. & W. Exch. 23, or of a third person, 2 Mete. Mass. 283; 20 Johns, N. Y. 76; 1 Wend. N.Y. 164; 14 id. 116 ; 13 Ala. 353 ; 11 East, 390 ; 4 Barnew. & C. 506, for part, be given and re ceived, it is sufficient ; or if a part be given at a different place, 3 Hawks. No. C. 580; 29 Miss. 139, or an earlier time, it will be suffi cient, 18 Pick. Mass. 414 ; and, in general, pay ment of part suffices if any additional benefit be received. 30 Vt. 424 ; 26 Conn. 392 ; 27 Barb. N. Y. 485 ; 4 Jones No. C. 518 ; 4 Iowa, 219. And the receipt of specific property if agreed to is sufficient, whatever its value, 19 Fick. Mass. 273; 5 Day, Conn. 360; but both delivery and acceptance must be proved. 1
Wash. C. C. 328 ; 3 Blackf. Ind. 354; 1 Dev & B. No. C. 565 ; 8 Penn. St. 106 ; 16 id. 450; 4 Eng. L. & Eq. 185.
2. It must be certain. An agreement that the defendant shall relinquish the possession of a house in satisfaction, &c., is not valid, un less it is also agreed at what time it shall be relinquished. Yelv. 125. See 4 Mod. 88 ; 2 Johns. N. Y. 342; 3 Lev. 189 ; 2 Iowa, 553 ; 1 Hempst. Ark. 315.
It must be complete. That is, every thing must be done which the party undertakes to do, Comyns, Dig. Accord, B 4; T. Raym. 203; Kebl. 690; Croke, Eliz. 46; 9 Coke 79, b; 14 Eng. L. & Eq. 296; 2 Iowa, 553; 5 N. H. 136: 24 id. 289 ; 3 Johns. Cas. N. Y. 243 ; 5 Johns N. Y. 386 ; 16 id. 86 ; 1 Gray, Mass. 245 ; 8 Ohio, 393 ; 7 Blackf. Ind. 582 ; 14 B. Monr. Ky. 459 ; 2 Ark. 45 ; 44 Me. 121; 15 Tex. 198; 29 Penn. St. 179; 8 Md. 188; but this per formance may be merely the substitution of a new undertaking for the old if the parties so intended, 2 Parsons, Contr. 194 n. ; 24 Conn. 613 ; 23 Barb. N. Y. 546 ; 7 Md. 259; and in some cases it is sufficient if performance be tendered and refused. 2 Greenleaf, Ev. 31; 2 Barnew. & Ad. 328; 3 id. 701. But see 3 Bingh. N. C. 715 ; 16 Barb. N. Y. 598; 5 R. I. 219.
It must be by the debtor or his agent, 3 Wend. N. Y. 66; 2 Ala. 84; and if made by a stran ger, will not avail the debtor in an action at law. Strange, 592; 3 T. B. Monr. Ky. 302 ; 6 Johns. N. See 6 Ohio St. 71. His remedy in such a case is in equity. Croke, Eliz. 541 ; 3 Taunt. 117 ; 5 East, 294.
3. Accord with satisfaction, when completed, has two effects: it is a payment of the debt; and it is a species of sale of the thing given by the debtor to the creditor, in satisfaction ; but it differs from it in this, that it is not valid until the delivery of the article, and there is no warranty of the thing thus sold, except perhaps the title; for in regard to this it can not be doubted, that if the debtor gave on an accord and satisfaction the goods of another, there would be no satisfaction. But the in tention of the parties is of the utmost conse quence, 30 Vt. 424 ; as the debtor will be re quired only to execute the new contract to that point whence it was to operate a satis faction of the pre-existing liability. See, gene rally, 2 Greenleaf, Ev. 28 et seq. ; 2 Parsons, Contr. 193 et seq. ; Comyne, Dig. Accord; 1 Bouvier, Inst. n. 805 ; 3 id n. 2478-2481; PAYMENT.