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PRECEDENTS.

PRECEDENTS.

Accord and Satisfaction (a),
Defence of Accord and Satisfaction to Action for Negligence.

(Por other forms of this defence, see pp. 431, 642.) 1. Shortly after the happening of the collision referred to in Defence of the paragraph of the statement of claim, one of the officers accord and

satisfacof the defendants, duly authorised by them in that behalf, tion. called upon the plaintiff for the purpose of ascertaining from him whether he intended to make any claim against the defendants, arising out of the said collision, and to pay to him any reasonable sum which might be agreed upon between them in accord and satisfaction of such claim.

2. At such interview the plaintiff informed the said officer that

(a) “ Accord and satisfaction" means that something is given or done What by the defendant to or for the plaintiff, and accepted by the latter on a constitutes mutual agreement that it shall be a discharge of a cause of action. accord and The agreement is the accord, and the thing given or done is the satisfac- satisfaction. An oral agreement will be sufficient. (Lavery v. Turley, 30 L. J. tion. Ex. 49.) Accord without satisfaction or satisfaction without accord is no defence, as the two must exist. Being always ready and willing to execute the satisfaction is not a defence, as it must be performed. (Collingbourne v. Mantell, 5 M. & W. 289.) In the case of an ascertained debt a smaller eum is no satisfaction of a larger amount without a further consideration, but if there be some additional benefit or consideration it will be binding. But in other cases the value of the thing done or given in satisfaction or accord cannot be inquired into, as they are accepted as equivalent by agreement. (See Cumber v. Wane, and notes thereunder, 1 sm. L. C. 7th ed. 339.) Payment of a smaller sum may be a satisfaction of a larger ascertained debt, where there is a valid agreement to that effect, as where it is agreed to be paid before the whole debt is due, or where it is paid as a composition for the debt, under an arrangement with creditors, or where it is paid by a third party. (Ib.). If the satisfaction is accepted after breach, it is a good defence. (Blake's case, Coke's Rep. vol. 3, p. 342.)

The acceptance of a valid agreement in discharge, such as an agreement for a compromise, is a good defence unless it appear that the execution or performance of the agreement and not the agreement itself was the satisfaction intended. (Hall v. Flockton, 20 L. J. Q. B. 208.) An agreement to refer to arbitration is not an accord and satisfaction. (Eliot v. R. Exch. Ass. Co., L. R. 2 Ex. 237.)

Accord and satisfaction made by a stranger on behalf of the defendant and accepted by the plaintiff, is a good defence. (Jones v. Broadhurst, 9 C. B. 173. See at 193–4.)

If one of several joint creditors accept a satisfaction it is binding on the others. (Smith v. Lorell, 20 L. J. C. P. 37; Wallace v. Kelsall, 7 M. & W. 261.)

Defence of he intended to make a claim against the defendants arising out accord and satisfac.

of the said collision, and it was there and then agreed between tion. the plaintiff and the said officer acting for and on behalf of the

defendants that in consideration that the defendants would pay to the plaintiff a sum of £3 38. in full satisfaction and discharge of all cause of action which he then had, or at any time or times thereafter might have, against the defendants, on account of or in any way incidental to or connected with the said collision, he the plaintiff would accept such sum from the defendants in full satisfaction and discharge of such cause of action.

3. Thereupon the said officer, acting for or on behalf of the defendants, paid to the plaintiff the sum of £8 3s., and the

aintiff received the same in full discharge and accord and satisfaction of the aforesaid cause of action.

Reply-fraud (a). Reply

1. The said officer procured the plaintiff to accept the said that release accord and satisfaction by fraudulently representing to him for was obtained by

that purpose that his injuries were of a trivial and temporary fraud. nature, and that if they should afterwards turn out to be more

serious than he then anticipated, he would still be in a position to obtain, and would obtain, further compensation from the defendants in respect thereof.

2. The plaintiff, fully believing in the said representations and acting upon the faith thereof, was induced thereby to accept the said accord and satisfaction, and then accepted the same upon

and subject to the express condition that he should not thereby exclude himself from further compensation from the defendants if his injuries should turn out to be more serious than he then anticipated.

3. After the acceptance of the said accord and satisfaction, the injuries suffered by the plaintiff in the collision did turn out to be of a more serious nature than was anticipated by the plaintiff at the time of his accepting the accord and satisfaction aforesaid, and thereupon the plaintiff commenced the present action against the defendants.

(a) Where a sum of money was paid in satisfaction of unliquidated damages and a discharge in full signed, it was held it would not be binding if it appeared that the plaintiff was not aware of the effect of the paper he signed. (See cases cited in Lee v. Lancashire fi Yorkshire Railn. On L. R. 6 Ch. 537.)

Account Stated (a).

an account

Claim upon an Account Stated. 1. During the months of February, March, and April, 1877, Claim on the plaintiff supplied to the defendants various quantities of

stated. groceries, and the defendants supplied to the plaintiff several tons of coal ; and invoices and accounts were delivered between the parties with reference to the said groceries and coal.

2. On the 28th of April, 1877, the plaintiff and the defendant went through the items of the accounts aforesaid, and an account was thereupon stated between the parties showing a balance of £32 to be due and owing by the defendant to the plaintiff.

3. The defendant has not paid the same. The plaintiff claims

Another form of Claim on Account Stated. 1. Between the 1st of January and the 28th of February, Another 1875, the plaintiff supplied to the defendant various articles of claim on

an account drapery; and accounts and invoices of the goods so supplied, stated. and their prices, were from time to time furnished to the defendant, and payments on account were from time to time made by the defendant.

2. On the 28th of February, 1875, a balance remained due

(a) The action on an account stated applies to the case where there What an have been various dealings between the parties, and finally a balance is account struck, and so much found to be due from the one to the other. When stated is. this balance is agreed on, an account is said to be stated, and upon it an action can be founded. The account must have been stated to the creditor himself or his agent, and it is not sufficient if made to a stranger. (Tucker v. Barrow, 7 B. & C. 623); but it is not necessary that the state. Need not ment should be in writing : it may be by word of mouth. (Singleton v. be in Barrett, 2 C. & J. 368). An account stated is not conclusive in the sense writing. that the parties may never go into the items which make it up. (Thomas 5. Harkes, 8 M. & W. 140.) On the contrary it has been held that it may be shown that an item therein is not a good debt for want of consideration (French v. French, 2 M. & G. 644); or generally the defendant may show Not conthat the account was stated under a mistake, or that certain items were clusive miscalculated or founded on error, provided the correction is promptly made as to the before the other party has innocently acted upon the faith of the correct. items that ness of the account, and altered his previous position, so as to render it make it up. inequitable to call upon him to refund the money. (See Addison on Contracts, 7th edit., pp. 1072—3).

But it is no objection to an item that has been allowed in an account stated that it arose upon a contract, which was bad for want of writing within the Statute of Frauds. (Cocking v. Ward, 1 C. B. 858.) An infant cannot state an account. (Trueman v. Turst, 1 T. R. 40.)

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