Opinion
August Term, 1849.
1. Where a certain duty arises under a sealed instrument, merely accord and satisfaction by parol is no sufficient answer, for a deed ought to be avoided by a matter of as high a nature.
2. But where the convenant sounds altogether in damages, though secured by a penalty, accord and satisfaction executed, though in parol, is a good defense.
APPEAL from the Superior Court of Law of MACON, at Fall Term, 1848, Manly, J., presiding.
This is an action of debt on a covenant. The case is as follows; The intestate, Douglass, contracted by deed to purchase from the plaintiff a tract of land, at the price of $1,500. The covenant is executed by both parties, and each is bound to the other in the penal sum of $3,000. The vendor is bound to make title when the purchase money is paid, and the vendee to pay the money in the year 1846, if put into possession in that year. The words of the latter covenant are, "the consideration of $1,500 to be paid to said Cabe, when said Douglass should be put in full possession of the land contracted for." The breach assigned in the declaration is that the intestate did not, during 1846, pay the price stipulated in the condition of the bond; the damages demanded are for the failure so to do. Several pleas were entered by the defendant. The only one relied on is that of accord and satisfaction. It was admitted that the (194) intestate had declared his inability to perform his contract, but the defendant alleges that when called on by the plaintiff to do so, the parties had entered into a new contract, to wit, that the intestate proposed to the plaintiff to pay him $100 on account of his disappointment, which the plaintiff accepted as a satisfaction. On the part of the plaintiff it is contended that, as the intestate's obligation was under seal, it could not be discharged by an accord and satisfaction entered into by parol, and that, therefore, the testimony was improperly received. The testimony was received, and the jury instructed that if they believed it they should find for the defendant.
There was a verdict for the defendant, and the plaintiff appealed.
N.W. Woodfin and J. W. Woodfin for plaintiff.
Gaither for defendant.
As a general proposition it is true that where a certain duty arises under a sealed instrument merely accord and satisfaction by parol is no sufficient answer, for a deed ought to be avoided by a matter of as high a nature. Blake's case, 6 Coke, 44. As in an action of debt upon a single bill, for the payment of money only, for there the debt is ascertained. Preston v. Christmas, 1 Wil., 88. But when the covenant sounds altogether in damages, though secured by a penalty, accord and satisfaction executed, though in parol, is a good defense. This doctrine is clearly established by the case of S. v. Cordon, 30 N.C. 179. There the action was in debt on a guardian bond, and satisfaction pleaded. Upon settling his accounts, the guardian fell largely in debt to his ward, the relator, and, in satisfaction, transferred by assignment to him several promissory notes on third persons, which were accepted in satisfaction of the balance. This Court decided that the suit was substantially for damages; that the duty did not accrue (195) to the relator in certainty by the bond, but from a wrong or default subsequent, which gave him his action to recover damages from the defendant, and consequently a plea of satisfaction of those damages is good. This case covers the whole ground taken on the defense.
PER CURIAM. Judgment affirmed.