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explanations for the existence of this undesirable doctrine. One is the historical origin of the accord. The other is the early judicial confusion of the principles involved where an executory accord was relied upon as a defense to the original cause of action with the principles involved where an action was brought for breach of the executory accord.
"From time immemorial the acceptance of anything in satisfaction of the damages caused by a tort would bar a subsequent action against the wrongdoer." This doctrine originated long before recognition of the bilateral contract. Obviously, it was not upon any principle of previous agreement or accord between the parties, but rather upon the ultimate acceptance of satisfaction that the discharge of the obligation rested. This was not a contractual accord at all; it was merely an offer to accept something in satisfaction of the tort liability, and its only importance was as evidence that the performance relied upon by the defendant as satisfaction had been accepted by the plaintiff as such. This type of "accord" should always have been clearly distinguished from the contractual accord, but such has not been the case. The term "accord" should be strictly confined to designate a bilateral contract, involving a promise to give something in satisfaction of an existing cause of action and a promise to accept it as such.5
An accord, in this correct sense, should have been recognized as a valid contract concurrently with the recognition of other bilateral contracts, but the courts "were doubtless led astray by the assumption that if a contract of accord was valid, it necessarily would be a defense to the original cause of action." It had been said very early by way of dictum that an action would lie upon an executory accord because it consisted of mutual promises which were recognized as binding. But when this dictum was urged in 1696, in the Common Pleas, as a reason for holding an executory accord to be a defense to an action, the court not only denied that the accord
The court of King's Bench, in 1681, said: "Though in Peytoe's Case, and formerly, it hath been held that an accord cannot be pleaded unless it appears to be executed citing as authority, 9 Co., 79b, 3 Cro. 46,
pl. 2, Case v. Barber, T. Ray. 450, 83 Eng. Rep. R. 235.
Reeves v. Hearne (1836) 1 M. & W. 323, 150 Eng. Rep. R. 457.
2 James Barr Ames, in 9 Harvard Law Review, 55, citing Anon. Y. B. 21 and 22 Edw. I 586; Y. B. Hen. VI 25-13; Y. B. 34 Hen. VI 43, 44; Andrew v. Boughby, Dyer, 75, pl. 23.
33 Williston on Contracts, § 1838.
For cases in which there seems to have been merely an offer by the creditor, see: Wray v. Milestone (1839) 5 M. & W. 21, 151 Eng. Rep. R. 10; Francis v. Deming (1890) 59 Conn. 108, 21 Atl. 1006; Harbor v. Morgan (1853) 4 Ind. 158; Burgess v. Denison Mfg. Co. (1887) 79 Me. 266, 9 Atl. 726; Cannon R. Ass'n. v. Rogers (1891) 46 Minn. 376, 49 N. W. 128; Hawley v. Foote (1838) 19 Wend. (N. Y.) 516; Keen v. Vaughan's Executrix (1865) 48 Pa. 477.
5 Langdell, Summ. Cont., § 87; 3 Williston on Contracts, § 1838.
63 Williston on Contracts, § 1839.
See also the explanations of Eyre, C. J., infra, n. 9.
7 Case v. Barber (1681) T. Ray. 450, 83 Eng. Rep. R. 235.
was a good defense to an action for breach of the original obligation, but also was of opinion that it had no validity as a contract. Just about a century later, in Lynn v. Bruce, it was decided that breach of an accord executory gave the plaintiff no right, the justice quoting from the Common Pleas decision as authority. These cases, which have never been overruled,10 and the modern cases which support their doctrine" illustrate the failure of the courts to distinguish clearly the use of an accord executory as a defense from its use as the basis of an action.
This confusion has been unfortunate as well as unnecessary. It is entirely consistent, and correct, to consider an executory accord as a binding bilateral contract on the one hand, yet consider it unavailable as a defense to an action for breach of the original obligation. It does not constitute a bar to an action on the original claim simply because the agreement of the parties is that it is performance of the accord that shall extinguish the claim.12 To be successfully pleaded as such a bar the accord must be fully executed,18 unless
8 Allen v. Harris, supra, n. 1.
Supra, n. 1. In this case an additional reason was assigned for denying that an executory accord was a contract, Eyre, C. J., saying: "Interest reipublicae ut sit finis litium. Accord executed is satisfaction, accord executory is only substituting one cause of action in the room of another, which might go on to any extent." Since the accord in this case was merely an agreement to pay part of an admitted debt in satisfaction of the whole, the decision of the case was correct upon its facts.
10 Upon the authority of these cases Leake on Contracts (4th ed.) says: "The accord is in the nature of a mere offer which either party may refuse or withdraw; and upon which no action will lie." See p. 623. Practically identical language appears at p. 660, Leake on Contracts (7th ed.).
11 Binder v. Altman (1918) 210 Ill. App. 237; Brennan v. Ostrander (1884) 50 N. Y. Super. 426; Moers v. Moers (1919) 187 App. Div. 655, 176 N. Y. Supp. 277, reversed, however, in the Court of Appeals, 229 N. Y. 294, 128 N. E. 202; Kinney v. Brotherhood of American Yeomen (1905) 15 N. D. 21, 106 N. W. 44 (dictum that executory accord is revocable at pleasure of either party); Strobeck v. Blackmore (1917) 38 N. D. 593, 165 N. W. 980 (same). See 2 Parsons on Contracts (9th ed.) p. 837, and cases cited.
12 This is clearly the reason underlying the decisions in the cases cited, infra, n. 13, 14, 15, 16, 17, all of which rest upon the proposition that full performance of the accord is essential to constitute satisfaction of the original
Andrews, J., in the leading case of Kromer v. Heim (1879) 75 N. Y. 574, 31 Am. Rep. 491, said: "Where the performance of the new promise was the thing to be received in satisfaction, then, until performance, there is not complete accord; and the original obligation remains in force. Russell v. Lytle, 6 Wend. 390; Daniels v. Hallenbeck, 19 Wend. 408; Hawley v. Foote, 19 Wend. 516; The Brooklyn Bank v. De Grauw, 23 Wend. 342; Tilton v. Alcott, 16 Barb. 598."
See Cal. Civ. Code, § 1523.
13 Simmons v. Oullahan (1888) 75 Cal. 508, 17 Pac. 543; Silvers v. Grossman (1920) 192 Pac. 534 (Cal.); Bell v. Pittman (1911) 143 Ky. 521, 136 S. W. 1026; Dettloff v. Hammond etc. Co. (1917) 195 Mich. 117, 161 N. W. 949; Vining v. Insurance Co. (1901) 89 Mo. App. 311; Gowing v. Thomas (1893) 67 N. H. 399, 40 Atl. 184; Reilly v. Barrett (1917) 220 N. Y. 170, 115 N. E. 453; Moers v. Moers (1920) 229 N. Y. 294, 128 N. E. 202 (dictum); Welch v. Miller (1897) 70 Vt. 108, 39 Atl. 749.
This should not be confused with the question whether part performance
the agreement or promise, instead of the performance thereof, is accepted as satisfaction.1 Mere readiness to perform,15 part performance,16 and even a tender of performance of the accord are insufficient to constitute a bar to the original claim, by the great weight of authority. To sustain a plea of accord as a defense would lead to the undesirable result that even though the debtor subsequently failed to perform the accord, the creditor's claim on the original cause of action would be barred, for judgment having once been given for the defendant on that very cause of action, the matter has become res judicata. Then the creditor's only remedy would lie upon the accord. To force him to this as the sole remedy would be to substitute the accord executory for the original obligation when, in reality, the parties intended that only performance of the accord should extinguish such obligation.
But it does not follow from these principles governing defense that an unexecuted accord is unenforceable, or revocable at the pleasure of either party, as many courts have considered it to be. Why should an executory accord be revocable at the pleasure of either party? Why should it not be enforceable? A sufficient consideration is as essential in an accord as in any other contract.18
of the existing obligation is good consideration for an accord. For a discussion of this controversy see Accord and Satisfaction, 1 Cal. Jur. §§ 6, 7.
14 Treadwell v. Himmelmann (1875) 50 Cal. 9; Silvers v. Grossman, supra, n. 13; Simmons v. Clark (1870) 56 Ill. 96; Lumber Co. v. Tatum (1917) 203 Ill. Apo. 421; Bell v. Pitman, supra, n. 13; Field v. Aldrich (1895) 162 Mass. 587, 39 N. E. 288; Tuttle v. Metz Co. (1918) 229 Mass. 272, 118 N. E. 291; Gowing v. Thomas, supra, n. 13; Kromer v. Heim, supra, n. 12; Morehouse v. Second Nat. Bank of Oswego (1885) 98 N. Y. 503; Nassoiy v. Tomlinson (1896) 148 N. Y. 326, 51 Am. St. Rep. 695; Bandman v. Finn (1906) 185 N. Y. 508, 78 N. E. 175, 12 L. R. A. (N. S.) 1134; Manley v. Vermont Mutual Fire Ins. Co. (1906) 78 Vt. 331, 62 Atl. 1020; Morganthaler v. Somers (1916) 164 Wis. 159, 159 N. W. 717. See also, Moers v. Moers, supra, n. 13.
15 Ledwidge v. Bank (1918) 135 Ark. 420, 205 S. W. 808; Dudley v. Kennedy (1874) 63 Me. 465; Blackburn v. Ormsby (1861) 41 Pa. 97; Sargent v. Donahue (1920) 94 Vt. 271, 110 Atl. 442.
16 Ledwidge v. Bank, supra, n. 15; Elliott v. Thomas (1914) 185 Mo. App. 27, 171 S. W. 939; Cooke v. McAdoo (1914) 85 N. J. L. 692, 90 Atl. 302; Kromer v. Heim, supra, n. 12; Perlitch v. Kanner (1918) 171 N. Y. Supp. 148; Luders v. Clothier (1917) 26 Pa. Dist. 385. See 3 Williston on Contracts, § 1843.
17 Silvers v. Grossman, supra, n. 13; Ledwidge v. Bank, supra, n. 15; Hayes v. Allen (1894) 160 Mass. 286, 35 N. E. 852, 39 Am. St. Rep. 474; Kromer v. Heim, supra, n. 12; Hosler v. Hursh (1892) 151 Pa. 415, 25 Atl. 52; Sargent v. Donahue, supra, n. 15. See 3 Williston on Contracts, § 1843. For a discussion of the question of tender of a less amount as payment in full of a greater constituting an accord and satisfaction, and tender of checks in payment, see Accord and Satisfaction, 1 Cal. Jur. §§ 9, 10.
18 Crowther v. Farrer (1850) 15 Q. B. 677, 20 L. J., Q. B. 298, 15 Jur. 535; Nash v. Armstrong (1861) 10 C. B. (N. S.) 259, 30 L. J., C. P. 286, 7 Jur. (N. S.) 1060, 9 W. R. 782; Marsh v. Fricke (1911) 1 Ala. App. 649, 56 So. 110; Lapp-Gifford Co. v. Muscoy Water Co. (1913) 166 Cal. 25, 134 Pac. 989; Schweider v. Lang (1882) 29 Minn. 254, 13 N. W. 33, 43 Am. Rep. 202; Partridge Lumber Co. v. Phelps-Burruss Lumber Co. (1912) 91 Neb. 396, 136 N. W. 65; Billings v. Vanderbeck (1857) 23 Barb. (N. Y.) 546.
All the other elements of a bilateral executory contract are present.19 It would be wisdom to disregard the conceptions of accord which antedate the simple contract, to avoid the judicial confusion which has been perpetuated since contractual accord came into our law, and to treat this executory accord as a binding bilateral agreement. Some courts have discarded the ancient rule, and hold clearly enough that if an agreement by way of accord is broken, an action for the breach may be maintained on the ordinary principles of contract.20 This is unquestionably the sounder and more desirable doctrine.
There should be little doubt about the enforceability of an executory accord in California. The legislative intent to include it in the class of binding bilateral contracts is clearly-if not very emphatically-indicated by the wording of section 1522 of the Civil Code, which provides: "Though the parties to an accord are bound to execute it, yet it does not extinguish the obligation until it is fully executed." The first case cited in explanation of the section quoted indicates the intention of the Code Commissioners to adopt the rule of the common law authorities which favored recognition of the accord as a binding contract.22 Though neither the California Supreme nor District Court of Appeal have had occasion to construe this section, the court in the case of Meske v. Melicher, 23 decided in North Dakota, under an identical code section,24 was of opinion that where there is an agreement of accord partly executed on the part of the defendant, plaintiff, under the code section, might either (1) sue on his original claim for any balance remaining after crediting thereon that which has been paid under the accord, or (2) sue on the contract of accord for breach thereof.
The principal case recognizes the weight of common law authority to be that a contract of accord was unenforceable and revocable. Notwithstanding this, and the fact that an earlier North Dakota case had declared executory accords to be revocable in that state,25
19 Crowther v. Farrer, supra, n. 18; Nash v. Armstrong, supra, n. 18; Marsh v. Fricke, supra, n. 18; Hunt v. Brown (1888) 146 Mass. 253, 15 N. E. 587; Schweider v. Lang, supra, n. 18; Billings v. Vanderbeck, supra, n. 18. 20 Crowther v. Farrer, supra, n. 18; Nash v. Armstrong, supra, n. 18; Marsh v. Fricke, supra, n. 18; Very v. Levy (1851) 54 U. S. (13 How.) 345, 14 L. Ed. 173; Chicora Fertilizer Co. v. Dunan (1900) 91 Md. 144, 46 Atl. 347, 50 L. R. A. 401; Hunt v. Brown, supra, n. 19; White v. Gray (1878) 68 Me. 579; Schweider v. Lang, supra, n. 18; Billings v. Vanderbeck, supra, n. 18; Hartwig v. American Malting Co. (1903) 74 App. Div. 140, 77 N. Y. Supp. 533, affd. 175 N. Y. 489, 67 N. E. 1083; Meaker Galvanizing Co. v. McInnes (1922) 116 Atl. 400 (Pa.). See Moers v. Moers, supra, n. 13. Anson on Contracts (Corbin) § 431, note 4, and cases cited; 3 Williston on Contracts, § 1848.
21 Cal. Civ. Code, § 1522.
22 Billings v. Vanderbeck, supra, n. 18. This may be considered the leading case favoring enforceability of executory accords. There were other cases cited by the commissioners concerned with the latter clause of the section quoted.
23 (July 26, 1923) 194 N. W. 737 (N. D.).
24 § 5826, C. L. 1913.
25 Kinney v. Brotherhood of American Yeomen, supra, n. 11. The court
the court said that the section of the code settled the controversy so far as North Dakota was concerned.
The same interpretation by the California courts, whenever the necessity for decision arises, seems inevitable. The code section in this state, identical with that of North Dakota, both of which are based upon the same section of Field's Draft and the reasoning of the same cases,26 is merely declaratory of the sounder common law rule, toward which the courts are tending even in the absence of
C. E. F.
AUTOMOBILES: MOTOR VEHICLE ACT: PROVISIONS OF THE ACT AS TO THE ESSENTIALS FOR THE TRANSFER OF LEGAL TITLE-Will the legal title to an automobile pass from a conditional vendor to his assignee where the requirements of the Motor Vehicle Act relating to the transfer of title have not been complied with? This question is not squarely presented by the case of Parke and Brown v. Franciscus1 which arose under the Motor Vehicle Act of 1919.2 This act provides that until a motor vehicle is registered as required by its terms and the transferee has received the new certificate of registration and has written his name upon its face, "delivery of said motor vehicle shall be deemed not to have been made and title thereto shall be deemed not to have passed and said intended transfer shall be deemed to be incomplete and not to be valid or effective for any purpose." (Italics ours.) In the instant case the conditional vendor of an automobile had allowed it to remain registered in the name of the party from whom he had originally purchased. He assigned his rights under the conditional sales agreement to assignees who gave notice to the conditional vendee but failed to have the registration changed. The conditional vendee and vendor subsequently transferred the property to an innocent purchaser whose name was filled in on the certificate of registration by the conditional vendor. In an action of claim and delivery, brought by the assignees of the conditional vendor against the innocent purchaser, the court held that legal title had passed to the assignees despite non-compliance with the statute; that the Motor Vehicle Act makes no attempt to modify the established law of property or to affect the contractual relations of individuals, but that its purpose is merely to raise revenue for use in the upkeep of the state highways and that the conditional vendor, by inserting
in the principal case is undoubtedly correct in saying that the North Dakota statute was overlooked in this earlier case.
26 Field's Draft of a Civil Code of New York (1862) § 652 is identical with § 1522 of the California Civil Code and with § 5826, C. L. 1913, of North Dakota; Billings v. Vanderbeck, supra, n. 18.
1 (January 23, 1924) 43 Cal. App. Dec. 240. Hearing in Supreme Court granted March 20, 1924.
2 Cal. Stats. 1919, p. 191.
3 Motor Vehicle Act, §8, Cal. Stats. 1919, p. 201.