after stating the ease: We concur with counsel for defendant that where there is an agreement to settle a controverted demand for a consideration fixed by the parties, all or a portion of which is executory, the defendant may set it up by making proper averments in regard to performance as an accord and satisfaction of the original demand. In this case if there were no controversy in regard to the terms of the agreement to release, we should not hesitate to hold that the defense was complete and that plaintiff would be compelled, for any breach of the contract, to sue upon that cause of action. While for manifest reasons we could not compel specific performance of the contract of employment, the plaintiff could recover damages for its breach. The difficulty in fixing the amount would not affect his right of action. The authorities cited in defendant’s brief sustain the contention made by counsel in that respect. The principle is well stated in Laughead v. Coke Co., 209 Pa. St., 368 (103 Am. St, 1014) : “It is no doubt true that when the accord is founded upon a new consideration and is accepted as satisfaction, it operates as such, and bars the remedy on the old contract. There is an obvious distinction between an engagement to accept a promise in satisfaction and an agreement requiring performance of the promise. If the promise itself, and not its performance, is accepted in satisfaction, this is a good accord and satisfaction without performance.”
The difficulty which we find in this appeal is that plaintiff alleges that he was- to receive a certain amount in cash and to have the promise or obligation of the defendant to employ him, etc. This defendant denies. If plaintiff’s contention be correct, and defendant, by fraud of its agent, has procured the execution of the release, omitting this most valuable portion of the consideration, it is in no position to rely upon the release as executed — and it offers nothing more.
The plaintiff alleges that there is fraud in the factum— that, being illiterate, the paper-writing which he signed was *129falsely read to him, and that be signed it believing that it contained tbe terms of tbe agreement as made by bim.' He testifies to bis allegation. If tbe jury should find with bis contention, the release is utterly void. It does not truthfully set forth the agreement upon which tbe accord and satisfaction is based.
In tbe cases cited and relied upon by defendant, supra, it is said: “The receipt was in full and was a receipt for uir-liquidated damages upon a disputed claim, and as such became final and conclusive because not successfully impeached for fraud, accident or mistake.” Tbe plaintiff, if so advised, could have asked equitable relief by way of reforming tbe instrument, so that it would conform to tbe agreement as be alleged it to be. Instead of doing so, be denies that be, knowingly, executed such a paper-writing.
. It is well settled that if one be illiterate, unable to read, and tbe paper-writing be read to bim falsely, that is,.otherwise than it is written, and be sign it, such paper-writing shall not be bis act and deed. This" is elementary. Furches, C. J., in Gutter v. Railroad, 128 N. C., 411, after stating tbe rule regarding fraud in tbe treaty, says: “If tbe plaintiff had required it to be read, and E bad read it falsely, it would-have been a fraud in tbe factumJudge Battle, in McArthur v. Johnson, 61 N. C., 317, after giving an illustration of a fraud in the factum,, says: “Another instance is afforded by tbe case of a deed executed by a blind or illiterate person, when it has been read falsely to bim upon bis request to have it read.” Tbe language of tbe present Chief Justice, in bis concurring opinion in Cutter’s case, supra, is decisive of this appeal: “Tbe misrepresentations here are not as to matters in the treaty * * *, but as to tbe contents of tbe deed drawn by one of them which the other could not read without bis glasses, and who, at tbe same time, was urged to sign at once without going for bis glasses.” Dorsett v. Mfg. Co., 131 N. C., 254; 24 Am. and Eng. Enc., 318.
*130There was competent evidence to be submitted to the jury, tending to sustain and, if believed, establishing plaintiffs contention.
The defendant, however, insists that plaintiff must, before setting up the defense, return the money which he has received. Whatever may have been required, if he had sued to cancel the instrument for fraud in the treaty, we do not think that he is required to return the money before setting up the plea of fraud in the factum. He is asking no equitable relief, but simply insisting that the paper-writing, relied upon by the defendant, is not his act and deed; and, as we have said, if he is correct in this, the defendant’s plea of accord and satisfaction has nothing upon which to stand. If the issue be found in his favor and he recover damages, of course the amount paid him will be deducted. If, on the contrary, the jury find against his contention, the defendant’s plea of accord and satisfaction is sustained, thus putting an end to the case.
We have not considered the exceptions in the record pointing to his Honor’s rulings upon questions of evidence, nor do we pass upon the controverted questions in respect to the plaintiffs right to recover upon his allegation of negligence. As the judgment of nonsuit does not state the reasons upon which it is based, we assume that his Honor was of the opinion that the defendant was barred by his release. The controversy in this respect, as we have seen, can only be settled by a verdict of the jury, and there must be a
New Trial.