45

44

tions in which equitable defenses may be set up in such actions.43 So, except in jurisdictions in which the rules requiring a writing, as above stated, obtain, the accord and satisfaction may usually rest in parol.** If the agreement of accord and satisfaction is in writing the instrument must generally be produced or its absence satisfactorily explained; but it has been held that when the agreement itself is not in writing but was consummated by the execution and delivery of a note or the like, this may be shown by parol without producing the note.46 So, where an agreement of accord and satisfaction between a county board, representing the county, and a claimant has been executed and the benefits received and accepted by the latter, it has been held that this may be shown by parol evidence in the absence of any written record or minutes thereof.47 Parol evidence has also been held admissible to remove the doubt where a written agreement is ambiguous, and it is doubtful as to what it covers. 48

$1599. Range and sufficiency of evidence.-The proof must accord with the allegations and not make a substantially different case.** Hence, evidence of an accord and satisfaction of a materially different character is not admissible,50 and the same has been held where the

"Steeds v. Steeds, L. R. 22 Q. B. 537; Smitherman v. Kidd, 36 N. Car. 86; see also, Boffinger v. Tuyer, 120 C. S. 198, 7 Sup. Ct. 529; Dearborn V. Cross, 7 Cow. (N. Y.) 48; Keeler V. Salisbury, 33 N. Y. 648, affirming, 27 Barb. 485; Moody v. Leavitt, 2 N. H. 171; Cutler v. Cox, 2 Blackf. (Ind.) 178, 18 Am. Dec. 152; Neldon V. Smith, 36 N. J. L. 148; Cabe v. Jameson, 32 N. Car. 193, 51 Am. Dec. 386; Savage v. Carter, 2.B. Mon. (Ky.) 512; Paune v. Barnett, 2 A. K. Marsh. (Ky.) 312; Leavitt v. Savage, 16 Me. 72; see likewise as to judgments: Savage v. Blanchard, 148 Mass. 348, 19 N. E. 396; Jones v. Ransom, 3 Ind. 327; Savage v. Everman, 70 Pa. St. 315, 10 Am. 676; McCullough v. Franklin Coal Co., 21 Md. 256; Cobb v. Cowdery, 40 Vt. 25, 94 Am. Dec. 370; Boffinger v. Tuyes, 120 U. S. 198, 7 Sup. Ct. 529.

VOL. 3 ELLIOTT Ev.-3

"See, Lavery v. Turley, 6 H. & N. 239; Massey v. Johnson, 1 Exch. 241; Green v. Lancaster County, 61 Neb. 473, 85 N. W. 439.

45 American v. Rinpert, 75 Ill. 228; see also, Brantley Co. v. Lee, 106 Ga. 313, 32 S. E. 101.

46 Fisher v. George S. Jones Co., 93 Ga. 717, 21 S. E. 152; Brantley Co. v. Lee, 106 Ga. 313, 32 S. E. 101.

47 Green v. Lancaster County, 61 Neb. 473, 85 N. W. 439.

49 Seloer's Assigned Estate, 7 Pa. Co. Ct. 417; see also, Fire Ins. Asso. v. Wickham, 141 U. S. 564, 12 Sup. Ct. 84; Simons v. Johnson, 3 B. & A. 175.

40 Smith v. Elrod, 122 Ala. 269, 24 So. 994; Walker v. Reese, 110 Ga. 582, 35 S. E. 771.

50 Walker v. Reese, 110 Ga. 582, 35 S. E. 771; but see, Smitherman v. Smith, 20 N. Car. 89.

evidence was of an accord with a different person from that alleged.51 A receipt in full is admissible in support of the plea,52 and where the amount is disputed, evidence of the retention by the plaintiff of a check stated to be in full of the claim has been held admissible in support of the plea, although indorsed by the plaintiff as received on account.5 53 So, evidence of the discontinuance of a former action for the same cause on payment of costs by the defendant has been held sufficient prima facie evidence of an accord and satisfaction,5* and lapse of time after the breach and before the commencement of the action may be shown with other evidence of accord and satisfaction.55 Where a claim is presented to a municipal corporation and allowed and accepted for a sum less than that demanded, this has been held evidence of an accord and satisfaction,56 and it has been held that it may be shown by parol evidence where no record thereof was made.57 But saying "It is not enough but there will be no trouble" is not suffi cient, and an order given by the plaintiff to the defendant is not admissible to support a plea of accord and satisfaction unless there is other evidence that it was intended or accepted in accord and satisfaction59 or at least an offer or promise of evidence to connect it with

58

51 Chappell

(Ohio) 372.

V. Phillips, Wright of an account, Kinman v. Canne

52 Grumley v. Webb, 48 Mo. 562; Treat v. Price, 47 Neb. 875, 66 N. W. 834; Vedder v. Vedder, 1 Denio (N. Y.) 257; Serat v. Smith, 15 N. Y. S. 330; Springfield &c. R. Co. v. Allen, 46 Ark. 217; United States v. Adam, 7 Wall. (U. S.) 463; see also as to refusal to give receipt as evidence to the contrary; Sicotte v. Barber, 83 Wis. 431, 53 N. W. 697; with which compare; Keck v. Insurance Co., 89 Iowa 200, 56 N. W. 438; Nassoity v. Tomlinson, 148 N. Y. 326, 42 N. E. 715, 51 Am. St. 695. As to explanation of receipt, see, Fire Ins. Asso. v. Wickham, 141 U. S. 564, 12 Sup. Ct. 84; Tanner v. Merrill, 108 Mich. 58, 65 N. W. 664, 62 Am. St. 687.

King v. Dorman, 55 N. Y. 876. So giving a note has been held prima facie evidence of settlement

fax, 34 Mo. 147.

54 Dana v. Taylor, 150 Mass. 25, 22 N. E. 65; but see, Carter v. Wilson, 2 Dev. &. B. (N. Car.) 276; Bond v. McNider, 3 Ired. L. (N. Car.) 440.

55 Jenkins V. Hopkins, 9 Pick. (Mass.) 543; Ketchem v. Gulick, (N. J.) 20 Atl. 487; Abbott v. Wilmot, 22 Vt. 437; Bradley v. Gregory, 2 Campb. 383. But it has been held insufficient of itself to establish the plea, Austin V. Moore, 7 Metc. (Mass.) 116; Siboni v. Kirkman, 1 M. & W. 418.

the accord and satisfaction pleaded. So where an agreement and acceptance by the plaintiff of the covenant of a third person in full satisfaction of a note sued on was alleged by the defendant evidence of an indorsement on the note by such third person that he was to pay the same at a certain date and a credit of the same date still legible, though lines were drawn through it, was held insufficient to show an accord and satisfaction. Only a fair preponderance of the evidence, however, is required to support such a plea."1

60

Bruce v. Bruce, 4 Dana (Ky.) 530. For other cases in which the evidence was held insufficient to establish accord and satisfaction, see, Lee v. Tarplin, 183 Mass. 52, 66 N. E. 431; Bloomington Min. Co. v. Brooklyn &c. Co., 68 N. Y. 699, affirmed in 171 N. Y. 673, 64 N. E. 1118; Mount v. De Haven, 29 Ind. App. 127, 63 N. E. 330.

"Bruce v. Bruce, 4 Dana (Ky.) 530; Cheeves v. Danielly, 74 Ga. 712.

As to evidence in rebuttal, see: Bliss v. New York &c. R. Co., 160 Mass. 447, 36 N. E. 65, 39 Am. St. 504; Leslie v. Keepers, 68 Wis. 123, 31 N. W. 486; Fire Ins. Asso. v. Wickham, 141 U. S. 564, 12 Sup. Ct. 84; St. Louis &c. R. Co. v. Davis, 35 Kans. 464, 11 Pac. 421; with which compare, Roach v. Gilmer, 3 Utah 389, 4 Pac. 221; Vandervelden v. Chicago &c. R. Co., 61 Fed. 54.

1604. Burden of proof and evidence. 1611. Accounting in equity-After

1605. Accounts stated-Generally.

1606. Questions of law or fact.

1607. Burden and manner of prov. ing account stated.

1608. Presumptions in cases of account stated.

interlocutory decree.

1612. Accounting in equity-Answer

as evidence.

1613. Accounting under the code.

§ 1600. Generally.-At common law account, or "account render," was a form of action used where one had received goods or money for another, to ascertain and recover the balance due; but it could be maintained only where the amount was unliquidated.' It was one of the oldest forms of actions, and was, perhaps, most frequently used where two persons were parties in a mercantile adventure, or where the defendant was under a duty to account as bailiff, receiver, or guardian in socage; but it has been abolished or changed by statute in some states, and has very generally fallen into disuse by reason of the fact

'Shipman Com. Law Pl. (2nd ed.) 46; 1 Bouv. Law Dict. (Rawle's ed.) 64; see also, Godfrey v. Saunders, 3 Wils. 94; Foster v. Allanson, 2 Term R. 479; Harrington v. Deane, 1 Hob. 36; Conklin v. Bush, 8 Pa. St. 514; Duncan v. Lyons, 3 Johns. Ch. (N. Y.) 351; Shriver v. Nimick, 41 Pa. St. 91; Lee v. Alrams, 12 Ill. 111; Morgan v. Adams, 37 Vt. 233; Park v. McGowen, 64 Vt. 173, 23 Atl. 855; Appelby v. Brown, 24 N. Y. 143.

'Beach v. Hotchkiss, 2 Conn. 425; Fowle v. Kirkland, 18 Pick. (Mass.) 299; Leonard v. Leonard, 1 W. & S. (Pa.) 342; Griffith v. Willing, 3 Bin. (Pa.) 317; see also, Field v. Brown, 146 Ind. 293, 45 N. E. 464.

In a few jurisdictions the action or remedy has been enlarged or extended by statute. See, Garrity v. Hamburger Co., 136 Ill. 499, 27 N. E. 11; Park v. McGowan, 64 Vt. 173, 23 Atl. 855; Cooley Blackstone 163; Andrews Am. Law 1074; see also,

that there is usually a more satisfactory remedy by an action of assumpsit or a proceeding in equity. Accounts, however, so often come in question and evidence relating to accounts and accounting is so often of importance in actions at law, as well as in suits in equity, that it has been deemed advisable to treat the whole subject here, so far at least as questions of evidence are concerned.

§ 1601. Evidence and procedure.—We have stated the general nature of the action of account at common law, but have not yet fully considered the course of procedure and the admissibility of evidence in such actions. The first question, and usually the only question, to be determined before verdict or judgment quod computet, is the liability of the defendant to account, and, it being found that the defendant should account an interlocutory judgment quod computet is rendered. The matter is then referred to an auditor or auditors to take and to report the account with the balance found due, and thereapon final judgment quod recuperet is usually rendered by the court." It seems that the only plea in bar is one which shows that the defendant is not liable to account, and, as the judgment to account is usually conclusive as to the mere liability to account, such a plea should be pleaded before the interlocutory judgment to account; and the defendant cannot, ordinarily, introduce evidence to show that he has accounted, or the like, after such a judgment is rendered." But a plea denying the relation on which the alleged liability to account is based, or a plea that the defendant has fully accounted, plene com

Black v. Nichols, 68 Me. 227; Bitterling v. Deshler, 160 Pa. St. 1, 28 Atl. 445; Hamilton v. Conine, 28 Md. 635, 92 Am. Dec. 724.

'Lee v. Abrams, 12 III. 111; Hawley v. Burd, 6 Ill. App. 454; Lee v. Yanaway, 52 Ill. App. 23; Hathaway v. Russell, 46 N. Y. Super. Ct. 103; McPherson v. McPherson, 11 Ired. L. (N. Car.) 391, 53 Am. Dec. 416.

*Shipman Com. Law Pl. (2nd ed.) 49; Bouv. Law Dict. (Rawle's ed.) 64; Lee v. Abrams, 12 Ill. 111; McPherson v. McPherson, 11 Ired. L. (N. Car.) 391, 53 Am. Dec. 416; 1 Cyc. 413.

Garrity v. Hamburger Co., 136 Ill. 499, 27 N. E. 11. Nor should the plea be to separate items nor to release separate items of the account; Mott v. Downer, 1 Root (Conn.) 425; Joy v. Walker, 29 Vt. 257.

Lee v. Abrams, 12 Ill. 111; Godfrey v. Saunders, 3 Wils. 94; Taylor v. Page, 3 Cro. Car. 116; Day v. Lockwood, 24 Conn. 185; Hayden v. Merrill, 44 Vt. 336, 8 Am. R. 372.

* McMurray v. Rawson, 3 Hill (N. Y.) 59; Bishop v. Baldwin, 14 Vt. 145; Bruismaid v. Mayo, 9 Vt. 31; Ricketts v. Loftus, L. R. 14 Q. B. 482.