cause of action against B: Vedder v. Vedder, 1 Denio, 257. Upon a disputed claim for damages for not making repairs, one party finally paid a certain sum to the other, who said that "all his claim was settled." Held, a satisfaction, and that no action could then be brought: Neary v. Bostwick, 2 Hilt. 514. Plaintiff and defendant having had a controversy as to the amount due the former, he wrote to the latter to send "such an amount as you feel inclined, which shall be accepted in full satisfaction of my claims." An amount was sent and retained. Held, an accord and satisfaction: Childs v. Millville Mut. etc. Ins. Co., 56 Vt. 609. A receipt was given to the buyer of goods by the seller on receiving from the buyer the check of a third person upon a fourth, which, on presentation to the drawee within a reasonable time, was dishonored. Held, not an accord and satisfaction: Weddigen v. Boston Elastic Fabric Co., 100 Mass. 422. A held lands charged with an equitable lien. He undertook to give his own notes for part of the sum, and gave the bond of a third person for the remainder. The creditor agreed to receive them in settlement, but on their being tendered, refused so to do. Held, not a satisfaction of the lien: Day v. Roth, 18 N. Y. 448. The debtor sent his statement of the account to the creditor with a note for the apparent balance. The creditor kept the note, but wrote, giving his view of certain items. Held, not an accord and satisfaction: Boston Rubber Co. v. Peerless Wringer Co., 58 Vt. 551.

§ 2568. The Consideration. It is not necessary that the consideration be adequate.' But the matter or thing agreed to be received in satisfaction must have some legal value to the creditor. And the consideration must not be illegal. An agreement by two having each an action for false imprisonment pending against the other to discontinue their respective actions, and an actual discontinuance accordingly, are a good accord and satisfaction.* And the matter of the accord must be something presently done, or agreed to be done, in satisfaction, and not something already done and past; for any past matter would not constitute a consideration sufficient to support it.5

1 Leake on Contracts, 878; Warren v. Skinner, 20 Conn. 589; Donahoe v. Woodbury, 6 Cush. 148; Pierce v. Pierce, 25 Barb. 243; Ogborn v. Hoffman, 52 Ind. 439; Fisher v. May, 2 Bibb, 449; 5 Am. Dec. 626; Reid v. Bartlett, 19 Pick. 273.

2 Keeler. Neal, 2 Watts, 424; Davis v. Noaks, 3 J. J. Marsh. 494.

3 Driesbach v. Keller, 2 Pa. St. 77. Foster v. Trull, 12 Johns. 456. Stead v. Poyer, 1 Com. B. 782.

In the case of a payment made in satisfaction of a money debt, the acceptance of a smaller sum is no satisfaction of a debt of larger amount,' without a release of the residue or some additional consideration for giving it up. A parol release of a judgment for less than the amount due is invalid, although indorsed on the execution. An executed agreement to accept part in satisfaction of the whole, accompanied by a formal release, is valid. The liability of a third party may be accepted in satisfaction of the debt of the original debtor, under a valid agreement of all the parties to that effect. The acceptance of the liability of a new party in discharge of the obligation before breach constitutes, as we have seen, what is called "novation." Thus the note of a third person accepted in satisfaction of a debt discharges the debt."

1 Warren v. Skinner, 20 Conn. 557; Curran v. Rummell, 118 Mass. 482; Hayes v. Davidson, 70 N. C. 573; Vance v. Lubenbill, 9 B. Mon. 249; Harrison v. Close, 2 Johns. 448; 3 Am. Dec. 444; Seymour v. Minturn, 17 Johns. 169; 8 Am. Dec. 381; Kraft v. Wickey, 4 Gill & J. 392; 23 Am. Dec. 569; Oberndorf v. Bank, 31 Md. 132; 1 Am. Rep. 31; Reynolds v. French, 8 Vt. 85; 30 Am. Dec. 456; Spann v. Baltzell, 1 Fla. 301; 46 Am. Dec. 346; Daniels v. Hatch, 21 N. J. L. 391; 47 Am. Dec. 169; Pearson v. Thomason, 15 Ala. 700; 50 Am. Dec. 59; Donohoe v. Woodbury, 6 Cush. 148; 52 Am. Dec. 777; Twitchell v. Shaw, 10 Cush. 46; 57 Am. Dec. 80; Walan v. Kerby, 99 Mass. 3; Young v. Jones, 64 Me. 563; 18 Am. Rep. 279; St. Louis etc. R. R. Co. v. Davis, 35 Kan. 464; Hooker v. Hyde, 61 Wis. 204; Luddington v. Bell, 77 N. Y. 138; 33 Am. Rep. 601; White v. Kuntz, 107 N. Y. 518; 1 Am. St. Rep. 886.

2 Gain v. McAden, 2 Ired. Eq. 79; Merchants' Bank v. Davis, 3 Ga. 112; Booth v. Smith, 3 Wend. 68; Phillips

v. Berger, 2 Barb. 612; Baim v. Beulyn, 62 Miss. 110; Mitchell v. Wheaton, 46 Conn. 315; 33 Am. Rep. 24; Schweider v. Lang, 29 Minn. 254; 43 Am. Rep. 202. The receipt of one hundred dollars and a cow in full of a judgment for two hundred dollars works a satisfaction of the judgment: Neal v. Handley, 116 Ill. 418; 56 Am. Rep. 784. See ante, Composition with Creditors.

3 Weber v. Couch, 134 Mass. 26; 45 Am. Rep. 274.

Gordon v. Moore, 44 Ark. 349; 51 Am. Rep. 606.

5 Bennett v. Hill, 14 R. I. 322. See ante, Title Trusts, and see post, § 2572; Leavitt v. Morrow, 6 Ohio St. 71; 67 Am. Dec. 334.

Boyd v. Hitchcock, 20 Johns. 76; 11 Am. Dec. 247; Le Page v. McCrea, 1 Wend. 164; 19 Am. Dec. 469; Frisbie v. Larned, 21 Wend. 453; Conkling . King, 10 Barb. 375; Keeler v. Salisbury, 27 Barb. 488; Webb v. Goldsmith, 2 Duer, 418; Brooks v. White, 2 Met. 283; 37 Am. Dec. 95.

CHAPTER CXXII.

RESCISSION AND RELEASE.

§ 2569. Rescission of contract by express agreement.

§ 2570. Rescission may be implied.

Requisites of new agreement rescinding or altering prior contract.
Acceptance of new debtor - Novation.

Rescission by death.

Release Effect of.

§ 2571.

§ 2572.

§ 2573.

§ 2574.

§ 2575.

Form of and requisites of release.

§ 2579. Rescission by act of one party.

2569. Rescission of Contract by Express Agreement. - A contract may be discharged at any time before the performance is due, by a new agreement validly made, with the effect of altering the terms of the original agreement, or of rescinding it altogether; and a claim under the original contract may then be met by the new agreement, so far as the latter operates to alter or rescind the former.' Where a contract remains executory, and before breach, it may be annulled by agreement of all parties; but when broken, and right of action accrued, the debt or damages can only be released for a consideration; but so far as the contract remains executory, an agreement to annul on one side is consideration for an agreement to annul on the other side. The period for the performance of a written contract or the payment of money may be enlarged by parol, and an action in the contract cannot

1 Smith v. Tunno, 1 McCord Ch. 443; 16 Am. Dec. 617; Johnson v. Reed, 9 Mass. 78; 6 Am. Dec. 36; Mills v. Riley, 7 Ind. 137; Dunham v. Barnes, 9 Allen, 352; Byrd v. Bertrand, 7 Ark. 321; Lawrence v. Dale, 3 Johns. Ch. 23; 19 Johns. 439; Hart

v. Lauman, 29 Barb. 410; Hadden v. Dimick, 13 Abb. Pr., N. S., 135; Mather v. Butler County, 28 Iowa, 253; Reed v. McGrew, 5 Ohio, 550; Baum v. Covert, 62 Miss. 113.

Collyer v. Moulton, 9 R. I. 90; 98 Am. Dec. 370.

be sustained until the expiration of the enlarged time.1 An agreement in writing to deliver an article at a particular place may be controlled and modified by a subsequent parol agreement to deliver it at a different place.2 A provision in a contract against extra work, except as agreed to in writing, may be rescinded by the parties, who may agree to alterations by parol. A contract may be rescinded in part, and stand as to the residue, by the consent of the parties to it. One written contract complete in itself will be conclusively presumed to supersede another one made prior thereto in relation to the same subject-matter. But the making of a new contract between the parties to the old one does not affect rights of third persons which have accrued thereunder. Executory contracts may be rescinded by the parties to them. only where they continue interested until the agreement to rescind is made. Where a promise is made for the benefit of a stranger to the contract, it may be rescinded by the parties thereto before it is accepted by the stranger. A proposition for a mutual rescission of a contract assumes its validity, and the proposition being rejected, the parties stand where they did before.9

§ 2570. Rescission may be Implied. The rescission may be implied in some cases. Thus if agreements be made between the same parties concerning the same matter, of which the terms of the latter are inconsistent with those of the former, so that they cannot subsist together, the latter will be construed to discharge the

1 Cox v. Carrell, 6 Iowa, 350; Stryker v. Vanderbilt, 25 N. J. L. 482; Fleming v. Gilbert, 3 Johns. 520; Blood v. Goodrich, 9 Wend. 68; 24 Am. Dec. 121; Clark v. Dales, 20 Barb. 42; Mechan v. Williams, 36 How. Pr. 73; Thrall v. Mead, 40 Vt. 540; Lane v. Sprague, 36 Vt. 289; Schmidt v. Couperthwait, 66 How. Pr. 477.

2 Langford v. Cummings, 4 Ala. 46; Miles v. Roberts, 34 N. H. 245.

former.1 So the rescission may be implied where it has never been followed or acted upon for a length of time.2

§ 2571. Requisites of New Agreement Rescinding or Altering Prior Contract.-The form in which the new agreement must be depends, as a rule, upon the form of the old. If the original contract was put in writing merely by agreement of the parties, and not in pursuance of any statutory requirement, the new agreement, in alteration or discharge, is not required to be in writing, and may be proved by parol evidence. Thus evidence of a parol agreement extending the time of performance of a written contract previously made is admissible. But if the original contract was required by the statute of frauds or any other statute to be in writing, the new contract must also be in writing. A sealed executory contract cannot be released or rescinded by a parol agreement." Where, in a contract, a mode of rescinding it is provided, as by giving notice, and repaying the money received, the party cannot rescind it in any other mode. One seeking to rescind a contract must put, or offer to put, the other

1 Wheeden v. Fiske, 50 N. H. 125; Murray v. Harway, 56 N. Y. 337; Green v. Wells, 2 Cal. 584.

Rushbrook v. Laurence, L. R. 5 Ch. 3.

3 Robinson v. Batchelder, 4 N. H. 40; Fleming v. Gilbert, 3 Johns. 528; Stearns v. Hall, 9 Cush. 31; Dodge v. Crandall, 30 N. Y. 307; Munroe v. Perkins, 9 Pick. 298; 20 Am. Dec. 475; Blood v. Enos, 12 Vt. 625; 36 Am. Dec. 363; Spann v. Baltzell, 1 Fla. 301; 46 Am. Dec. 346; McGrann v. R. R. Co., 29 Pa. St. 82; Low v. Forbes, 18 Ill. 568. In Goss v. Lord Nugent, 5 Barn. & Adol. 65, a leading case, it is said: "By the general rules of the common law, if there be a contract which has been reduced into writing, it is competent to the parties, at any time before breach of it, by a new contract not in writing, either altogether to waive, dissolve, or annul the former agreement, or in any manner

to add to, or subtract from, or vary or qualify the terms of it, and thus to make a new contract, which is to be proved, partly by the written agreement, and partly by the subsequent verbal terms ingrafted upon what will be thus left of the written agreement."

Keating v. Price, 1 Johns. Cas. 222; 1 Am. Dec. 92; Solomons v. Jones, 3 Brev. 54; 5 Am. Dec. 538; Grafton Bank v. Woodward, 5 N. H. 99; 20 Am. Dec. 566; Langworthy v. Smith, 2 Wend. 587; 20 Am. Dec. 652; Deshazo v. Lewis, 5 Stew. & P. 91; 24 Am. Dec. 769.

Goss v. Lord Nugent, 5 Barn. & Adol. 65; Blood v. Goodrich, 9 Wend. 68; 24 Am. Dec. 121. Contra, Lauer v. Lee, 42 Pa. St. 165.

6 Delacroix ". Bulkley, 13 Wend. 71; Sigard v. Patterson, 3 Black f. 353. McKay v. Carrington, 1 McLean, 50.