Peterson v. Wheeler
| Decision Date | 28 February 1870 |
| Citation | 45 Mo. 369 |
| Parties | ALEXANDER PETERSON et al., Respondents, v. WM. T. WHEELER, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Sixth District Court.
Hereford & Foote, for appellant.
L. E. Carter, for respondents.
I. Any collateral agreement between the parties to the suit, which is not executed, is no defense to the notes sued on, and an acceptance of the performance of such agreement by plaintiff is necessary to its existence. (3 Blackst. 15, and notes; 2 Pars. on Cont. 681; Chitty on Cont. 760; 2 Starkie on Ev. 15; 2 T. R. 24; Edw. on Bills, 579; 23 Wend. 343; 19 Wend. 408-516; 6 Wend. 390; 16 Johns. 86; 5 Johns. 386.)
II. There was no release nor good accord and satisfaction set up in defendant's answer.
The plaintiffs sue on five promissory notes aggregating $285, exclusive of interest. The defendant alleges substantially, in the way of defense, that he accounted with the plaintiffs concerning these notes and the payments thereon, and that, upon such accounting, it was found that he owed them $250; that he thereupon paid $50, and promised to pay the balance on request; that such accounting was in full satisfaction of said notes, and that it was so accepted at the time by the plaintiffs. The fifty dollar payment and a promise to trade with the plaintiffs for the three next ensuing years are alleged as inducements to the settlement, and it is also alleged that the accounting was reduced to writing and signed by the plaintiffs. These facts do not constitute a bar to the action. The notes are not alleged to have been either paid, canceled, or surrendered; nor is it averred that there was any agreement for their surrender or release, or that the defendant has either paid or offered to pay the acknowledged balance against him. The answer seems to have been framed upon the theory of an accord and satisfaction; but the facts alleged merely show an accord without satisfaction, and without even a tender of satisfaction. The allegations on this point go no further than to assert a readiness to pay the agreed balance on demand. The transaction set out in the answer, at most, amounts to an executory accord, and that constitutes no bar to a suit brought to recover the original indebtedness. (See Brooklyn Bank v. De Graw, ...
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Collins v. Gaskill
...or unexecuted accord would not bar an action on the original indebtedness. Crouch v. Quigley, 258 Mo. 651, 167 S.W. 978; Peterson v. Wheeler, 45 Mo. 369; Chapman v. Adams, 204 Mo.App. 659, 219 S.W. Tillotson v. Independent Breweries Co., Mo. App., 236 S.W. 906; Elliott v. Thomas, 185 Mo.App......
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Priest v. Oehler
... ... full and complete performance of the terms of accord will ... suffice, a part performance being insufficient. Peterson ... v. Wheeler, 45 Mo. 369; Cruth v. Quigley, 258 ... Mo. 651; First National Bank v. Leach, 94 F. 310; ... Shubert v. Rosenberger, 45 L ... ...
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Collins v. Gaskill
...or unexecuted accord would not bar an action on the original indebtedness. Crouch v. Quigley, 258 Mo. 651, 167 S.W. 978; Peterson v. Wheeler, 45 Mo. 369; Chapman v. Adams, 204 Mo. App. 659, 219 S.W. 132; Tillotson v. Independent Breweries Co., Mo. App., 236 S.W. 906; Elliott v. Thomas, 185 ......
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Elliott v. Thomas
...this by attempting to make a deposit after suit is brought. An accord and satisfaction must be completed in order to be binding. [Peterson v. Wheeler, 45 Mo. 369; Barton Hunter, 59 Mo.App. 610.] The execution of the accord is the satisfaction, and an accord without satisfaction does not bar......