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paying the old debt. This is an independent transaction which the parties enter into after abandoning the old contract, which they are at liberty to do. Is there any doubt that a promise made by a third person in consideration for a transfer of the debt would be binding ? and, if so, how can the consideration be said not to subsist ? and may not a creditor contract with his debtor as well as with a third person ? The law does not incapacitate a man from transacting business because he has once failed to meet an engagement. If it did, business would come to a dead stop. Now, if the debt still subsists, what a puerile formality to require it to be first paid over and then paid back again before the new agreement is held binding! Does this ceremony change the character of the money thus juggled ? or is this circumlocution in harmony with the common law, which abhors circuity ?
There is in this instance, as there is generally, a mode to test the soundness of the maxim, a species of legal verification. The method is to ascertain whether the maxim is in unison with other legal principles. If it conflicts with them, it is an incongruity, and is necessarily unsound, whereas if it harmonizes with them, it may justly be deemed verified. Now suppose a creditor agrees with his debtor to advance, in cash, a sum of money equal to the debt in return for the debtor's agreement to furnish a specified quantity of merchandise.
What is there to prevent the creditor from setting off the debt which he owes by this new contract against that which is due him by the old ? Absolutely nothing. The old debt is extinguished by a set-off of an equal amount of money; so that it is, in reality, this advance of money which is the consideration for the new promise by the debtor. A novation is, therefore, but a set-off, and to deny its validity is to impeach that of set-off.
An important decision in confirmation of the view here taken, is that of Christie vs. Craige, 8 Harris Pa. R. 430. In that case the creditors agreed, on the day the note became due, to accept, in full satisfaction of the debt, a quantity of yarn. BLACK, C. J.: “ An accord is generally no bar to an action unless it has been followed by satisfaction. But where a debt is due by one contract, the parties may abolish it and substitute another in its place. Here the original contract was for the payment of money. The parties agreed that no money should be paid; but that yarn should be furnished instead of money. They had the right to do this ; and having done it, the bargain was for yarn, as much as if money had never been thought of. If a creditor consents to accept merchandise in satisfaction for his claim, and the debtor invests the money
with which he would otherwise have paid it in the goods contracted for, and has those goods ready at the time and place agreed upon, it would be wrong to say that money might be claimed afterwards. This principle needs no case to support it; and common justice will not tolerate that any authority should be set up against it.”
This clear and emphatic language uttered in a case in which the point was directly before the Court, should, it would seem, settle the law upon this point, at least in Pennsylvania. Instead of that, however, the recent case of Hearn vs. Kiehl, 2 Wright Pa. R. 147, re-establishes the maxim with a new gloss upon it, which makes it a still greater restraint upon the freedom of contracting. The facts of this case are well stated in the syllabus as follows:
“ A promise to take as payment of two notes, one over due and one not yet due, fifty per cent. of the amount of them, half in cash and half in a new note at three months, is without consideration, and the agreement is not binding unless executed.”
WOODWARD, J.: “ Accord and satisfaction is a good plea by a debtor to the action of his creditor, but the legal notion of an accord is a new agreement on a new consideration, to discharge the debtor, and it is not enough that there be a clear agreement or accord, and a sufficient consideration, but the accord must be executed. The plea must allege that the matter was accepted in satisfaction.
Such is the law between debtor and creditor.
“ The only consideration discernible in the agreement alleged in the affidavit of defence in this case is time. The sum stipulated to be paid in satisfaction of the debt was to be paid a little sooner than the whole debt would fall due, and that was the considera
tion for the plaintiff's promise. There was no other. Granting the sufficiency of this consideration, there was no execution of the accord.
There was, therefore, no satisfaction and so no defence set forth in the affidavit."
With great deference it is submitted that Mr. Justice WoodWARD stated the law in this case incorrectly. His Honor seems to have been misled by the inaccuracy of the terms of the maxim. The meaning of an accord is not a legal agreement; if it were, accord would be satisfaction. It is an agreement which lacks some essential of a legal agreement, and by consequence, wants the sanction which makes an agreement binding, and thereby gives it a legal existence. Whether the consideration be new or old is not material, provided it is sufficient. But his Honor's new definition that “ the legal notion of an accord is a new agreement on a new consideration," and the decision of Hearn vs. Kiehl, in which case there was the new consideration of time, in accordance with that definition, makes the maxim stih more comprehensive than ever. Heretofore there has been no question as to an accord being satisfaction if founded upon a new consideration and accepted as satisfaction. Chitty on Contracts 659; Story on Contracts, $ 982 a; Parsons on Contracts 194-5-6, and cases cited; Hart vs. Boller, 15 Sergeant & Rawle 162. There is, it is true, an assertion to be found in 1 Smith's Leading Cases 446, that an accord is not satisfaction, though founded upon a sufficient consideration ; but the authorities cited, so far from supporting, actually contradict the assertion. If Mr. Justice WOODWARD's interpretation of the maxim be received, and an accord, though founded on a new oonsideration, must be executed before it can be pleaded in satisfaction, then nothing but actual payment will discharge a debt.
In the State of Maine the principle of the maxim of accord and satisfaction, which is the equality of consideration in all substituted contracts, has been abolished by statute. R. S. of 1857, c. 82, $ 44, which is in the following terms: “No action shall be maintained on a demand settled by a creditor, or his attorney intrusted to collect it, in full discharge of it by the receipt of money or other valuable consideration, however small."
In the other States, Louisiana of course excluded, the maxim generally obtains. Clarke vs. Hawkins, 2 Ames, R. I. R. 219 ; Warren ys. Skinner, 20 Conn. 559 ; Rose vs. Hall, 26 Conn. 392; Jones vs. Perkins, 7 Cushman Miss. R. 139; Brown vs. Cambridge, 3 Allen 474; Matthis vs. Bryson, 4 Jones, N. Car. R. 508.
LAW REFORM AND CODIFICATION.
The present Lord Chancellor, WESTBURY, who has long had the reputation of holding very radical, not to say revolutionary, views in regard to Law Reform, delivered a speech in the House of Lords, on June 12th, which would afford ground of justification for any scheme in that direction which we have read or heard of in the last twenty years in America, during which period many and various madcap plans of reform in the law have been promulged and defended, and some of them adopted.
The proposition of his Lordship to revise and simplify the statute law of the Imperial Parliament, which extends over fortythree or forty-four octavo volumes, embracing the period since the 20th of Henry III., is certainly a very creditable one. These, in the language of the learned Chancellor, " are printed without the least regard to order; there is no system or arrangement in regard to them. They are printed just as they had been passed, chronologically ; * * enactments on the same subject being dispersed and scattered over an immense extent of ground. Unfortunately our legislation has been extempore. We wait till a grievance is intolerable, and then apply ourselves to a remedy. Our legislation has always been on the spur of the moment. * * You have no persons to assist you who are trained or educated in the great work of legislative composition.” His Lordship then proceeds to discuss the process of patchwork to which a bill is subjected in going through committee, and also through the several stages of its passage, and finally comes to the very natural conclusion that even a compilation of the statute law of the realm, bringing all upon particular subjects into one chapter, and omitting such such portions as, by lapse of time and change of circumstances, have become wholly obsolete, is a most desirable result.
The wonder to an American is that such process of revision and elimination has not been many times resorted to long before this late day. The written law of a State is a very different thing from its unwritten law. The written law is intended to embody general principles, merely, and not to reach all possible cases, as the unwritten law is claimed to do. It is easy to provide general principles, such as will embrace the majority of cases; but quite impossible to reduce any system of written law to such minuteness of specification as will meet all, or nearly all, the cases that occur.
Written laws, and written constitutions, of necessity, only embrace such facts and principles as have already transpired. They only contain, so to speak, the history and the wisdom of the past. And there is no possible objection, either in theory or in practice, to subject them, at intervals, to thorough and careful revision. And although such revisions will, in the main, be more wisely conducted, by adhering pretty closely to the general outline of the old system, without the introduction of very numerous modifications and improvements, even these are certainly not to be regarded as in any proper sense excluded from such a revision. This revision and analysis of the statute law of the realm is a thing for which the public convenience most loudly calls then, at the present time, most unquestionably; and one which we should not expect could be much longer deferred. And the speech of the Lord Chancellor is entitled REVISION OF THE STATUTE LAW, and the commission which his Lordship asked of the House extended no further than to a revision of the existing statute law of the realm. His Lordship intimated a hope that after the accomplishment of this desirable purpose, he should at some future time ask them to give him a committee for the purpose of ascertaining what is the best mode by which the future legislation of the country may be conducted, so as to secure an improved form in the composition of bills, all which seems to be most clearly demanded. But his Lordship then continues: “When the task of expurgating and classifying the statutes has been completed, it will be necessary to adopt