First Nat. Bank v. Leech

• Decision Date: 10 April 1899
• Docket Number: 1,140.
• Citation: 94 F. 310
• Parties: FIRST NAT. BANK OF ARKANSAS CITY v. LEECH.
• Court: U.S. Court of Appeals — Eighth Circuit

94 F. 310

FIRST NAT. BANK OF ARKANSAS CITY v. LEECH.

No. 1,140.

United States Court of Appeals, Eighth Circuit.

April 10, 1899

This is an action to recover the amounts due defendant in error from the plaintiff in error on two certificates of deposit. The defenses are that the bank having been placed in the hands of a receiver, plaintiff agreed with the bank, in writing, to accept in payment of his claims 10 per cent. in money, and certificates of deposit for the balance, payable in 10 installments, at intervals of three months, at 4 per cent per annum; that afterwards, it having been ascertained that the bank would be unable to carry out these agreements, the plaintiff agreed with defendant to accept in payment of his claims a note for $4,500 of one of the bank's debtors, to be secured by a mortgage on real estate of that debtor, and also by mortgage on three lots belonging to the bank, to be selected by the plaintiff from a large list of lots to be submitted to him, and the balance due the plaintiff was to be paid in 10 equal installments, at intervals of three months. There are no allegations of satisfaction or acceptance of the agreement, and upon the trial the court held the answer set up no defense, and sustained a demurrer to it, and directed a verdict for the plaintiff for the full amount of his claims. The contention of the plaintiff in error is that the court erred in sustaining the demurrer to the answer, and in refusing to permit the introduction of evidence to support its allegations.

Peters & Nicholson and Pollock & Lafferty, for plaintiff in error.

Stanley Vermillion & Evans and Mathews, Heade & Mathews, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

CALDWELL Circuit Judge.

The agreements set up in the answer amount to nothing more than an executory contract for an accord. There are no allegations showing a satisfaction. It is a well-settled rule of law that accord without satisfaction is not a good answer. An agreement or accord which is to operate as a satisfaction of an existing liability must, before it can have that effect be fully executed. It is not enough that there be a clear agreement or accord and a sufficient consideration; but the agreement or accord must be executed before it can be pleaded as an accord and satisfaction. If part of the consideration agreed on be not performed, the whole accord fails. City of Memphis v. Brown, 20 Wall. 289, 308, 209; Clifton v. Litchfield, 106 Mass. 34, 40, 41; Crow v. Lumber Co., 16 C.C.A. 127, 69 F. 61; Coblentz v Manufacturing Co., 40 Ark. 180; Ogilvie v. Hallam, 58 Iowa, 714, 12 N.W. 730; 1 Smith, Lead.Cas. (5th Am.Ed.) 445, 446, and cases there cited.

The...