Hearn v. Kiehl

• Decision Date: 28 January 1861
• Citation: 38 Pa. 147
• Parties: Hearn <I>versus</I> Kiehl.
• Court: Pennsylvania Supreme Court

38 Pa. 147

Hearn versus Kiehl.

Supreme Court of Pennsylvania.

January 28, 1861.

ERROR to the District Court of Philadelphia.

A. V. Parsons, for plaintiff in error, argued that the contract set forth in the affidavit of defence was a valid one, under which the creditor secured an immature and doubtful claim, and citing Addison on Contracts 21; Bathby v. Snowden, 3 Camp. 475; Wood v. Roberts, 2 Starkie 417; Hind v. Holdship, 2 Watts 104; Mercer v. Lancaster, 5 Barr 160; Klett v. Claridge, et al., 7 Casey 106; Reed v. Martin, 5 Casey 179, as to the question of consideration in such cases.

C. Guillou, for defendant in error.—The cases cited by plaintiff are not in point; those in 3 Campbell 475 and 2 Starkie 417, recognise the validity of contracts for compounding debts when entered into by a number of creditors, and are exceptions to the case of Cumber v. Wane, 1 Strange 425. In Mercer v. Lancaster, a note was given to relieve Lancaster for notes advanced by him. Reed v. Martin was, like this, the case of an unexecuted agreement, and is against plaintiff in error.

Where the agreement is to pay or deliver a less sum in discharge of a greater, there is no extinguishment of the debt, unless the contract is fully executed and accepted: Spruneberger v. Dentler, 4 Watts 126; Rising v. Patterson, 5 Wh. 316; 1 Sm. Lead. Cases 439.

The opinion of the court was delivered, January 28th 1861, by WOODWARD, J.

Accord and satisfaction is a good plea by a debtor to the action of his creditor, but the legal notion of 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. Mere readiness to perform the accord, or a tender of performance, or even a part performance and readiness to perform the rest, will not do. Such is the law between debtor and creditor.

The exception to these rules, is where a number of creditors agree to accept of a common debtor a composition amounting to less than their entire demand. Such agreements are binding, the consideration for the contract of each creditor being found in the agreement of the other creditors. See the authorities collected in note to 1 Smith's Leading Cases 443-446, and in Spruneberger v. Dentler, 4 Watts 126, and Rising v. Patterson, 5 Wh. 316.

The only consideration discernible in the agreement alleged in...