Sec 1000

A cash payment for a smaller amount may be an accord and satisfaction for a larger unliquidated claim.1 And an agreement by which a claim for unliquidated damages is suspended until the creditor does a particular act, operates to suspend such claim until such act is done.2 An agreement, also, for mutual discontinuance of two cross suits for false imprisonment may operate as an accord and satisfaction.3

N. H. 293; Hearn V. Kiel, 38 Penn. St. 149; Flack V. Garland, 8 Md. 191; Simmons V. Clark, 56 Ill. 96; Hall V. Smith, 10 Iowa, 48; Logan V. Austin, 1 Stew. (Ala.) 476; Poper. Tunstall, 3 Pike, 209: Overton V. Conner, 50 Tex. 113. The satisfaction must be complete to bar a suit. Cuxon V. Chadley, 3 B. & C. 591; Bragg V. Pierce, 53 Me. 65; Costello V. Cady, 102 Mass. 140; Kromer V. Heim, 75 N. Y. 574; Panzer-beiter V. Waydell, 21 Hun, 161; Spru-neberger V. Dentler, 4 Watts, 126; Ellis V. Bitzer, 2 Ohio, 91. That accord without satisfaction is a mere inoperative agreement, see Spence V. Heeley, 8 Exch. 668; Noe V. Christie, 51 N. Y. 270; Young V. Fugett, 1 Lea (Tenn.) 444.

1 Gabriel V. Dresser, 15 C. B. 622; Wray V. Milestone, 5 M. & W. 21; Collingbourne V. Mantell, 5 M. & W. 289; Bruce V. Bruce, 4 Dana, 530. As to novation, see supra, sec 852 et seq.

2 Allies V. Probyn, 2 C. M. & R. 408; but see Kinsler V. Pope, 5 Strobh. 126; Morris Canal Co. V. Vanvorst, 1 Zab. 101.

3 McManus V. Bark, L. R. 5 Ex. 65.

4 Smith, L. C. 7th Am. ed. 606; Maze V. Miller, 1 Wash. C. C. 328; Morris Canal Co. V. Vanvorst, 1 Zab. 101; Sinard V. Patterson, 3 Blackf. 354.

5 Pettis V. Ray, 12 R. I. 344.

6 Keeler V. Salisbury, 33 N. Y. 648.

7 See supra, sec 852 et seq.

Unliquidated debt for larger amount may be discharged on receipt of smaller amount in cash.

Sec 1001

While the rule still continues to be that a creditor cannot bind himself by a simple agreement to accept a smaller sum in lieu of an ascertained debt of a larger amount, yet it is now firmly settled that "if there be any benefit, or even legal possibility of a benefit, to the creditor thrown in, that additional weight will turn the scale, and render the consideration sufficient to support the agreement."4 Thus, in a Connecticut case in 1880, a creditor, having brought suit on a debt of $299, agreed, pending the litigation, to accept $150 in full, together with the costs and expenses of the suit when ascertained. The debtor paid the $150 and the costs, which ultimately turned out to be $18.00. It was held that this latter item made a sufficient additional consideration to constitute a binding accord and satisfaction.1 But the additional increment of consideration must be something appreciable.2 Hence a promise by the debtor to do something he is already bound to do, will not form such additional consideration;3 nor will, in general, a merely cumulative promise.4 But if appreciable, no matter how slight it may be, the consideration will be sufficient to support the settlement. "The rule that the payment of a less sum of money, though agreed by the plaintiff to be received in full satisfaction of a debt exceeding that amount, shall not be so considered in contemplation of law, is technical, and not very well supported by reason. Courts, therefore, have departed from it upon slight distinctions."5 Extension of time is always a good consideration.6

Any additional weight turns the scale.

1 Supra, sec 521, 533, 937; Long ridge V. Dorville, 5 B. & Ald. 117 Watters V. Smith, 2 B. & Ad. 889 Haigh V. Brookes, 10 A. & E. 309 Wilkinson V. Byers, 1 A. & E. 106 Palmerton V. Huxford, 4 Denio, 166 Howard V. Norton, 65 Barb. 161 McDaniels V. Lapliam, 21 Vt. 223 McDaniels V. Bank, 29 Vt. 235; Dono-hue V. Woodbury, 6 Cush. 150; Lamb V. Goodwin, 10 Ired. 320; Mathis V. Bryson, 4 Jones, L. 508.

2 Stracy V. Bank, 6 Bing. 754; Went-worth V. Bullen, 9 B. & C. 840.

3 Foster V. Trull, 12 Johns. 456; supra, sec 198, 533.

4 Smith's L. C. 7th Am. ed. 600; citing Steinman V. Magnus, 2 Camp. 124; 11 East, 390: Bradley V. Gregory, 2 Camp. 383; Wood V. Roberts, 2 Stark. 417; Boothby V. Sowden, 3 Camp. 175; Sibree V. Tripp, 15 M. & W. 23; and other cases cited supra, sec .

517; see Bailey V. Cowles, 86 Ill. 333; State V. Story, 57 Miss. 738. In Coul-dery V. Bartrum, L. R. 19 Ch. D. 399, Jessel, M. R., thus comments on the common-law rule: "According to English common law, a creditor might accept anything in satisfaction of his debt except a less amount of money. He might take a horse, or a canary, or a tomtit if he chose, and that was accord and satisfaction; but, by a most extraordinary peculiarity of the English common law, he could not take 19s. 6d. in the pound; that was nudum pactum. Therefore, although the creditor might take a canary, yet, if the debtor did not give him a canary, together with his 19s. 6d., there was no accord and satisfaction; if he did, there was accord and satisfaction. That was one of the mysteries of English common law." See also supra, sec 935 et seq.

1 Mitchell V. Wheaton, 46 Conn. 315.

2 Supra, sec 519; Buddicum V. Kirke, 3 Cranch, 293; Keeler V. Neal, 2 Watts, 424; Davis V. Noakes, 3 J. J. Marsh. 494.

3 Supra, sec 500, 720.

4 Supra, sec 498.

5 Nelson, J., Kellogg V. Richards, 14 Wend. 116; and in Johnston V. Bran-nan, 5 Johns. 271, the rule was spoken of as "rigid and unreasonable." See to same effect, comments of Dewey, J., in Brooks V. White, 2 Metc. 285; and in Smith, L. C. 7th Am. ed. 608. In Harper V. Graham, 20 Ohio, 105, the payment of an attorney's fee of $100, was held to supply the necessary makeweight.

6 Supra, sec 517 et seq.; Wormer V. Waterloo Works, 50 Iowa, 262. In Goddard V. O'Brien, L. R. 9 Q. B. D. 37, it was held by Grove, J., and Hud-dleston, B., that a cheque paid and accepted in discharge of a debt for a larger amount is a good satisfaction and discharge of the whole debt. It was held by both judges, that Cumber V. Wane had been overruled so far as concerns cases in which "any benefit, or even any legal possibility of benefit to the creditor is thrown in." And Cockburn, C. J., was quoted as saying in Bridges V. Garrett, L. R. 5 C. P. 451: "If, however, payment is made by cheque, and the cheque is duly honored, that is a payment in cash." In Mechanics' Bank V. Huston, 11 Weekly Notes, 389 (Sup. Ct. Penn. 1882), Sharswood, C. J., giving the opinion of the court, said: "It may be considered as now well settled in this state, that payment of part of an undisputed debt after it is due, though accepted in full, is not a good accord and satisfaction. Wentz V. De Haven, 1 S. & R. 312, which decided that in Pennsylvania, a mortgage may be released by a writing not under seal and without consideration, has been expressly overruled. Whitehill V. Wilson, 3 Penrose & Watts, 405; Kennedy V. Ware, 1 Barr, 445; Kidder V. Kidder, 9 Casey, 268. The opinion expressed in Milliken V. Brown, 1 Rawle, 397; and Hall ». Warwick, 2.