Cabe v. Jameson

Decision Date31 August 1849
Citation51 Am.Dec. 386,32 N.C. 193,10 Ired. 193
PartiesZACHARIAH CABE v. FRANKLIN JAMESON.
CourtNorth Carolina Supreme Court
OPINION TEXT STARTS HERE

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.

But where the covenant sounds altogether in damages, though secured by a penalty, accord and satisfaction executed, though in parol, is a good defence.

The case of the State v. Cordon, 8 Ire. 179, cited and approved.

Appeal from the Superior Court of Law of Macon County, at the Fall Term 1848, his Honor Judge MANLY 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 $1500. The covenant is executed by both parites, and each is bound to the other in the penal sum of $3000. 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 $1500 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 the year 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 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 one hundred dollars 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 the plaintiff .

Gaither, for the defendant .

NASH, J.

As a general proposition it is true, that...

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2 cases
  • Dobias v. White
    • United States
    • North Carolina Supreme Court
    • 29 Enero 1954
    ...348; Owens v. Branning Manufacturing Company, 168 N.C. 397, 84 S.E. 389; Griffin v. Petty, 101 N.C. 380, 7 S.E. 729; Cabe v. Jameson, 32 N.C. 193, 51 Am.Dec. 386; Smitherman v. Smith, 20 N.C. 2. If the accord is not fully performed, the original claim is not satisfied. 1 Am.Jur., Accord and......
  • Ireland v. Tapscott
    • United States
    • North Carolina Supreme Court
    • 31 Enero 1873
    ...of his co-sureties and principal. Gates v. Pollock, 5 Jones, 344; Mendenhall v. Parrish, 8 Ibid, 105. Accord and satisfaction. Cabe v. Jameson, 10 Ired. 193; Mathis v. Bryson, 4 Jones, 508; State v. Corden, 8 Ired. 179. His Honor instructed the jury, that the agreement and the release to Ha......

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