or that it turns out to be, of no value.' A party is not entitled to recover back the money paid for a consideration which has failed, where the failure has been caused by his own default. And it is essential that the failure of consideration should be complete.3

ILLUSTRATIONS.A pays B the price of certain goods. B does not deliver the goods. A may recover the money paid: Devaux v. Conolly, 8 Com. B. 640. Money is paid for railroad scrip which turns out to be forged. The money may be recovered back: Westropp v. Solomon, 8 Com. B. 345. Money paid in discounting a bill of exchange, the acceptance of which is a forgery. Held, that it may be recovered as upon a failure of the consideration: Jones v. Ryde, 5 Taunt. 488; Gurney v. Womersley, 4 El. & B. 133; 24 L. J. Q. B. 46. Money is paid for a bill of exchange which has been rendered void as against former parties by a material alteration. Held, that it may be recovered back: Burchfield v. Moore, 3 El. & B. 683; 23 L. J. Q. B. 261. Money is paid for the services of an agent. He performs them so badly as to be useless to his employer. The latter may recover the money: Bostock v. Jardine, 3 Hurl. & C. 700. Money is paid as a contract to convey lands. It turns out that the vendor has no title to them. The money may be recovered back: Pipkin v. James, 1 Humph. 325; 34 Am. Dec. 652. A, relying wholly on B's representations made without fraud, paid for the privilege of operating under a patent which turned out to be void. Held, that the money paid could not be recovered back: Schwarzenbach v. Odorless Excavating Apparatus Co., 65 Md. 34; 57 Am. Rep. 301.

§ 2564. Money Paid under Executory Illegal Contract may be Recovered back. Where money has been paid in consideration of an executory contract or purpose which is illegal, the party who has paid it may repudiate the agreement at any time before it is executed, and reclaim the money as if upon a failure of consideration." Thus where a person had paid money to another upon the illegal consideration of procuring him a public office, it was held that he might repudiate the agreement while

1 Leake on Contracts, 108. Leake on Contracts, 110. Leake on Contracts, 111.

Spring Co. v. Knowlton, 103 U. S. 49; Hooker v. De Palos, 2 Conn. 369.

it remained executory, and recover back the money.1 And money paid as the consideration of an illegal or void wagering contract depending upon a future event may be reclaimed at any time before the risk is determined." So if money has been paid to or deposited with a third party to be disposed of under an illegal contract, or for an illegal purpose, it may be reclaimed at any time before it has been actually paid over under the authority given for its disposal. So goods that have been delivered under an illegal agreement, or for an illegal purpose, may be reclaimed and recovered back so long as the agreement or purpose remains unexecuted."

ILLUSTRATIONS. - Goods had been delivered under a fictitious sale for the purpose of protecting the possession whilst the owner compounded with his creditors. Held, that he might repudiate the transaction before the composition had been carried out, and recover the goods from the pretended buyer, or from a subvendee to whom they had been delivered with notice of the illegal transaction: Taylor v. Bowers, L. R. 1 Q. B. D. 291.

§ 2565. But Aliter where Agreement is Executed.— After the execution of the illegal contract or purpose, the money paid under it, whether as the consideration or in performance of the promise, cannot be recovered back; for the parties are then equally delinquent, and the rule applies, that in pari delicto, melior est conditio possidentis.

1 Walker v. Chapman, cited in 2 Doug. 471.

2 Tappenden v. Randall, 2 Bos. & P. 467; Busk v. Walsh, 4 Taunt. 290.

49.

Spring Co. v. Knowlton, 103 U. S.

Taylor v. Bowers, 1 L. R. 1 Q. B. D. 291.

Leake on Contracts, 774; Worcester v. Eaton, 11 Mass. 368; Waite v. Merrill, 4 Me. 102; 16 Am. Dec. 238; Boutelle v. Melendy, 19 N. H. 196; 49 Am. Dec. 153; Staples v. Gould, 5 Sandf. 416. "The true test for determining whether or not the plaintiff and the defendant were in pari delicto is by considering whether the plaintiff could make out his case otherwise

than through the medium and by the aid of the illegal transaction to which he was himself a party": Taylor v. Chester, L. R. 4 Q. B. 314. "The rule is, In pari delicto, potior est conditio possidentis; and where the contract is executed and the money paid in pari delicto, this rule certainly holds, and the party who has paid it cannot recover it back. But where contracts or transactions are prohibited for the sake of protecting one set of men from another, the one, from their situation and condition, being liable to be oppressed or imposed upon by the other, - there the parties are not in pari delicto, and the person injured, after the transaction is finished and com

Money voluntarily paid for losses in stock-jobbing transactions, in violation of statute, cannot be recovered back.'

2566. Where Intent of Law Violated is to Protect Party. If the law violated was intended to protect one of the parties against the acts of the other, they are not in pari delicto, and the party intended to be protected may recover money paid in violation of such law. But only the party which the law was designed to protect can take advantage of it.

ILLUSTRATIONS.

Lotteries are forbidden by law, but a person pays money for lottery tickets. He may recover it back: Gray v. Roberts, 2 A. K. Marsh. 208; 12 Am. Dec. 383. A borrower pays interest, usurious by law. He may recover it back: Bosanquet v. Dashwood, Talb. Eq. Cas. 38; Schroeppel v. Corning, 5 Denio, 236.

§ 2567. Accord and Satisfaction-What It is - Effect of. A right of action for a breach of contract, or for any wrong, cannot be discharged by any payment or performance, or tender of payment or performance, without the consent and acceptance of the promisee; for the promisee, after breach, or the person injured, becomes entitled to the compensation or remedy provided by process of law, and is not bound to accept any tender or offer made in satisfaction of his legal rights. He may, however, agree to do so; and an agreement to accept something in satisfaction, accompanied by the delivery or performance of what is so agreed upon, satisfies and discharges his right of action. Such an arrangement is called an accord and satisfaction. Where one makes an

pleted, may bring his action and defeat the contract. For instance, by the statutes of usury, taking more than five per cent is declared illegal and the contract void; but these statutes were made to protect needy persons from the oppression of usurers, therefore the party injured may bring an action for the excess of interest": Lord Mansfield, C. J., in Browning v. Morris, 2 Cowp. 792.

1 Wyman v. Fiske, 3 Allen, 238; 80 Am. Dec. 66.

"Gray v. Roberts, 2 A. K. Marsh. 208; 12 Am. Dec. 383.

Deming v. State, 23 Ind. 416; Babcock v. Goodrich, 47 Cal. 509.

Leake on Contracts, 876; Pulliam v. Taylor, 50 Miss. 251; Bull v. Bull, 43 Conn. 455; Stockton v. Frey, 4 Gill, 406; 45 Am. Dec. 138; Heirn v. Carron, 11 Smedes & M. 361; 49 Am. Dec. 65.

offer of a sum of money to settle a disputed claim for a larger unliquidated amount, he may attach to his offer the condition that, if accepted, it shall operate as a full settlement, and its acceptance will then be deemed an accord and satisfaction.1

By the accord the parties agree upon a sum of money, or other matter, to be given and accepted as compensation for the breach, instead of the legal remedy provided by process of law. This, however, is insufficient to bar an action on the claim. It is by the execution of the accord, that is, by the actual delivery and acceptance of the matter agreed upon, that the right of action is satisfied and discharged. Saying "it is not enough, but there will be no trouble," at the time of the payment of a claim, is not an acceptance in full satisfaction. Readiness to perform the accord, or a tender of performance, or even part performance, is not enough. An accord and satisfaction, to constitute a bar, must be full, perfect, and complete. The accord must be executed, and not executory merely. It must be a satisfaction of the entire

"An accord and satisfaction in money, when applied to a debt or liquidated money claim, is commonly called payment; but the payment of a debt, made and accepted after it is due, and default made in payment, which operates in satisfaction of the right of action, must be distinguished from payment of the debt at the time of falling due, which operates in discharge of the contract by performance": Leake on Contracts, 878.

1 Berdell v. Bissell, 6 Col. 162; McDaniels v. Bank, 29 Vt. 230; 70 Am. Dec. 406.

2 Ballard v. Nokes, 2 Ark. 45; Rising v. Cummings, 47 Vt. 345; Piper v. Kingsbury, 48 Vt. 480; McKean v. Reed, Litt. Sel. Cas. 395; 12 Am. Dec. 318; Noe v. Christie, 51 N. Y. 272; Kromer v. Heim, 75 N. Y. 577; 31 Am. Rep. 491; Mitchell v. Hawley, 4 Denio, 414; 47 Am. Dec. 260.

Leake on Contracts, 876; Hall v. Smith, 10 Iowa, 45; Flack v. Garland,

8 Md. 188; Barnes v. Lloyd, 2 Miss. 584; Diller v. Brubaker, 52 Pa. St. 498; 91 Am. Dec. 177.

Willey v. Warden, 27 Vt. 655.

5 Hearn v. Kiehl, 38 Pa. St. 147; 80 Am. Dec. 472; Russell v. Lytle, 6 Wend. 390; 22 Am. Dec. 537.

Hearn v. Kiehl, 38 Pa. St. 147; 80 Am. Dec. 472; Brooklyn Bank v. De Grauw, 23 Wend. 342; 35 Am. Dec. 569; Kromer v. Heim, 75 N. Y. 574; 31 Am. Rep. 491.

'Hearn v. Kiehl, 38 Pa. St. 147; 80 Am. Dec. 472.

8 Jones v. Fennimore, 1 G. Greene, 134; Frentress v. Markle, 2 G. Greene, 553; Clark v. Dinsmore, 5 N. H. 136.

Ballard v. Nooks, 2 Ark. 45; Brooklyn Bank v. De Grauw, 23 Wend. 342; 35 Am. Dec. 569; Frost v. Johnson, 8 Ohio, 393; Coit v. Houston, 3 Johns. Cas. 243; Watkinson v. Inglesby, 5 Johns. 386; Russell v. Lytle, 6 Wend. 390; 22 Am. Dec. 537.

debt so as completely to extinguish it. Where there have been mutual accounts between two persons, the giving of a note by one to the other is prima facie evidence of a settlement of accounts between them.2

Accord and satisfaction after breach discharges the right of action, whether it be founded on a deed or other writing, or upon an agreement by word of mouth. An accord and satisfaction in parol is a good defense to an action on a specialty. Accord and satisfaction made with and accepted by one of several joint creditors discharges the debtor as against all." Accord and satisfaction made by one of several parties jointly liable, or jointly and severally liable, for the same debt, and accepted by the creditor, discharges all."

An accord and satisfaction obtained by the fraud and misrepresentation of the debtor is void; and if the satisfaction entirely fails, the accord is no bar to a suit on the debt.8

ILLUSTRATIONS.-A collector of customs received money for penalties. A coastwise clerk at the custom-house claimed a share as informer, which the collector refused to allow him; but did however, as did also the naval officer, pay him, from time to time, small amounts of money, by way of gratuities, on account of his services in the matter, which were understood to be in full settlement for his services. Held, a valid accord and satisfaction: Barry v. Goodrich, 98 Mass. 335. A creditor agreed to take certain property of his debtor in satisfaction of his debt, upon the faith of representations of the debtor as to its condition, and he took it under such agreement, after he had an opportunity to test their truth. Held, a good accord and satisfaction of the debt: Williams v. Phelps, 16 Wis. 80. A and B had mutual causes of action against each other. A paid B in satisfaction, taking his receipt; B procured from A a receipt "in full of all demands," nothing being said as to A's particular demand. Held, a good accord and satisfaction of A's

1 Line . Nelson, 38 N. J. L. 358. Kinman v. Cannefax, 34 Mo. 147. . Leake on Contracts, 877; or upon a judgment: Savage v. Everman, 70 Pa. St. 315; 10 Am. Rep. 676.

Cabe e. Jameson, 10 Ired. 193; 51 Am. Dec. 356.

264.

Wallace v. Kelsall, 7 Mees. & W.

Nicholson v. Revill, 4 Ad. & E. 675. Stafford r. Bacon, 1 Hill, 532; 37 Am. Dec. 366; Dolsen . Arnold, 10 How. Pr. 531.

* Clark v. Bowen, 22 How. 270.