Cabe v. Jameson, 32 N.C. 193, 10 Ired. 193 (1849)

Aug. 1849 · Supreme Court of North Carolina

32 N.C. 193, 10 Ired. 193

ZACHARIAH CABE vs. FRANKLIN JAMESON.

Where a certain duty arises under a sealed instrument, merely .accord and satisfaction by parol is no sufficient answer, for a deed ought to be avoided by a matter of as high a nature.

"But where the covenant sounds altogether In damages, though secured by a penalty, accord and satisfaction executed, though in parol, is a good de« fence. ■

Tire ease of- tire Slate v. Cordon, 8,Ire. 179, cited and approved.

Appeal from the Superior Court of Law of Macon County, at the Fall Term 1848, his Honor Judge Manlt presiding.

This is an action of debt on a covenant. The case is as follows. The intestate, Douglass, contracted by deed to purchase from the plaintiff a tract of land, at the price of 500. The covenant is executed by both parites, and ill is bound to the other in the penal sum of $3000, le vendor is bound to make title, when the purchase ■rey is paid, • and the vendee to pay the money in the j-ear 1S4S, if put into possession in that 3'ear. The words of the latter covenant are, “the consideration of $1500 to be paid to said Cabe, when said Douglass should be put in full possession of the land contracted for.” The breach assigned in the declaration is, that the intestate did not, during the year 1S46, pay the price stipulated in the condition of the bond; the damages demanded are for the failure so to do. Several pleas were entered by the de» fendant. The only one relied on is, that of accord and satisfaction. Jt.-'W-as- admitted, that the intestate had de» dared his inability to perform his contract, but the defendant alleges, that when called on by the plaintiff to do soi the parties had entered into a new contract, to wit: that the intestate proposed to the plaintiff to pay him one hundred dollars on account of his disappointment, which the plaintiff accepted, as a satisfaction. On the part of the plaintiff, it is contended, that; as the intestate’s obligation was under seal, it could not be discharged by an accord and satisfaction, entered into by parol, and that therefore the testimony was improperly received. The testimony was received, and the jury instructed, that, if they believed it, they should find for the defendant.

There was a verdict for the defendant, and the plaintiff appealed.

N. IT. Woodfin and J: W. Woodfin, for the plaintiff.

Gaither, for the defendant.

Nash, J,

Asa general proposition it is true, that where . a certain duty arises under a sealed instrument, merely •accord and satisfaction by parol is no sufficient answer, for a deed ought to be avoided by a matter of as high nature. Cth Coke 44, Blake’s case. As in an action debt upon a single bill, for the payment ol money or for there the debt is ascertained. Preston v. Christmass Wil. 88. Tut when the covenant sounds altogether in damages, though secured by a penalty, accord and satisfaction executed, though in parol, is a good defence. This doctrine is clearly established by the case of the State v. Cordon 8 Ire. 179. There the action was in debt ■ on a guardian bond, and satisfaction pleaded. Upon settling his accounts, the guardian fell largely in debt to his ward, the relator, and, in satisfaction, transferred, by assignment to him, several promissory notes on third persons, which were accepted in satisfaction of the balance. This Court decided, that the suit was substantially for damages, that the duty did not accrue tovthe relator in certainty by the bond, but from a wrong or default subsequent, which gave him his action to recover damages from the defendant, and consequent a plea of satisfaction of those damages is good. This case covers the whole ground, taken on the defence.

Ter Curiam

Judgment affirmed.'