Simmons v. Hamilton

McKee, J.: The Court below found, in substance, that the defendants were jointly indebted to the plaintiff by a promissory note which was then due and payable at the Commercial Bank of Los Angeles; that they verbally agreed with the plaintiff to take up his note in the following manner, viz.: Bicknell engaged to pay one-fourth of the principal and interest due upon the note, and Hamilton to pay the other three-fourths of the note by giving to the plaintiff his individual promissory note, secured by mortgage upon real estate in the city of Los Angeles. This the plaintiff verbally agreed to accept in satisfaction of their joint note.

Bicknell performed his part of this verbal agreement by paying into the Commercial Bank one-fourth of the principal and interest of the note, and the same was credited by the cashier of the bank upon the note. Hamilton executed his promissory note for the balance of the joint note; and to secure its pay-, ment, he and his wife executed a mortgage upon their homestead property. This note and mortgage Hamilton offered to deliver to the plaintiff, and demanded a surrender of the joint note of himself and Bicknell. But the mortgage was not satisfactory to the plaintiff, and he refused to accept Hamilton’s note or the mortgage, or to surrender the joint note, and soon afterwards he brought this action. Upon these facts, the Court below decided, as a conclusion of law, that the plaintiff was entitled to judgment upon the note in action against the defendant Hamilton, but was not against the defendant Bicknell.

[495]This conclusion of law was erroneous, for the findings of facts did not sustain the defense of accord and satisfaction. The findings correspond with the answer in the case, but the answer did not contain facts sufficient to constitute the defense. It averred only an unexecuted verbal agreement. But the authorities are uniform, that a plea of accord, to be a good plea, must show an accord which is not executory at a future day; but which ought to be executed, and has been executed, before the action is brought. ( Cushing v. Wyman, 44 Me. 121; Noe v. Christy, 51 N. Y. 279; Goodrich v. Stanley, 24 Conn. 613.)

How, the verbal agreement which was averred in the answer, and which was found by the Court, was never executed by the defendants. It was performed in part by the defendant. Bicknell ; but part performance of a verbal agreement by one or two joint debtors is not an execution by both; and an unexecuted agreement does not extinguish the obligation of joint debtors, unless it has been expressly accepted by the creditor, or he has agreed in writing to accept it, in satisfaction of the obligation. (§§ 1523, 1524, Civ. Code.) Therefore, that portion of the answer of defendant Bicknell which contained the alleged defense of accord and satisfaction should have been disregarded. The conclusion of law founded upon it was erroneous. (Bosquett v. Crane, 51 Cal. 501.) Instead of drawing such a conclusion, the Court should have decided that there was no accord and satisfaction; that the obligation of the defendants had not been extinguished by the unexecuted verbal agreement of the parties; and that the plaintiff was entitled to judgment against both the defendants. Having erred in its conclusion of law, and in giving judgment for the defendant Bicknell, the Court did not afterwards err in granting a new trial upon the ground that it had erred in its conclusion of law.