CHAPTER IV. ACCORD AND SATISFACTION. SECTION 1521. Accord, what. 1522. Effect of accord. 1523. Satisfaction, what. 1524. Accord of liquidated debt. Accord, what. SEC. 1521. Effect of accord. Satisfaction, what. Accord of liquidated debt. An accord is an agreement to accept, in extinction of an obligation, something to which the person agreeing to accept is not otherwise entitled. N. Y. C. C., Sec. 732. SEC. 1522. Though the parties to an accord are bound to execute it, yet it does not extinguish the obligation until it is fully executed. N. Y. C. C., Sec. 733. SEC. 1523. Acceptance, by the creditor, of the consideration of an accord, extinguishes the obligation, and is called satisfaction. Hall vs. Flockton, 16 Q. B., 1039; Jones vs. Sawkins, 5 C. B., 142. Though an accord and satisfaction is not at common law a defence to a claim founded upon a record or specialty (Mitchell vs. Hawley, 4 Den., 414), the Commissioners do not think it wise to retain this distinction. N. Y. C. C., Sec. 734. NOTE.-Sealed instruments are abolished by this Code, (Sec. 1096.) A specialty referred to in the above note of the New York revisers is by our Sec. 1096 on the same footing with simple contracts. SEC. 1524. Part performance of an obligation, either before or after a breach thereof, when expressly accepted by the creditor in satisfaction, and rendered in pursuance of an agreement for that purpose, though without any new consideration, extinguishes the obligation. Stats. 1868, 31. NOTE. This section is the alternate section or "substitute," proposed by the New York Commission. The seetion of their text (Sec. 735) and its note are as follows: SEC. 735. Payment of an amount less than that of a liquidated debt then payable, is not a satisfaction thereof, though accepted as such. "Palmerston vs. Huxford, 4 Denio, 166; Neary vs. Bostwick, 2 Hilt., 514; see Evans vs. Powis, 1 Exch., 601; Wilkinson vs. Byers, 1 Ad. & El., 106; Brooks vs. White, 3 Metc., 286; Goodnow vs. Smith, 18 Pick., 414; Smith vs. Brown, 3 Hawks, 580; Von Gerhard vs. Lighte, 13 Abb. Pr., 101; Harrison vs. Wilcox, 2 Johns, 448; Dederick vs. CHAPTER V. NOVATION. SECTION 1530. Novation, what. 1531. Modes of novation. 1532. Consideration for novation presumed, when. 1533. Intent presumed. 1534. Completed novation operates, how. 1535. Novation a contract. 1536. Rescission of novation. SEC. 1530. Novation is the substitution of a new obli- Novation, gation for an existing one. what. 1. By the substitution of a new obligation between the same parties, with intent to extinguish the old obligation. 2. By the substitution of a new debtor in place of the old one, with intent to release the latter; or, 3. By the substitution of a new creditor in place of the old one, with intent to transfer the rights of the latter to the former. N. Y. C. C., Sec. 737. NOTE. This section, from the New York Code, is modi- See Sec. Modes of novation. Considera tion for novation pre sumed, when Intent presumed. Completed novation operates, how Novation a contract. Rescission of novation. SEC. 1532. The old obligation, the mutual relation of the parties and the mutual advantages expectant from the new obligation, constitute a sufficient consideration to support novation. [New section.] NOTE. The following is Sec. 739 of the New York Civil Code: "SEC. 739. The acceptance, by a creditor, of a new obligation of the debtor for the payment of money only, in satisfaction of another obligation of as high degree, for the payment of a specific sum of money only, then payable, does not extinguish the latter obligation (unless accepted as a satisfaction under Sec. 735), but extends the time of payment until the new obligation becomes payable." We have adopted the New York alternate for their See. 735. If the parties agree that a new obligation should satisfy an old one for the same debt, why should the law interfere? Is not the old obligation sufficient consideration to support the new one? SEC. 1533. When the new contract is made, the intent mentioned in Sec. 1551 is presumed, until the contrary appears, or unless such presumption operates to discharge an encumbrance, security or surety. [New section.] SEC. 1531. When novation is complete it operates as satisfaction of the pre-existing obligation. [New section.] SEC. 1535. ject to all the Novation is made by contract, and is subrules concerning contracts in general. N. Y. C. C., Sec. 738. SEC. 1536. When the obligation of a third person, or an order upon such person, is accepted in satisfaction, the creditor may rescind such acceptance, if the debtor prevents such person from complying with the order, or from fulfilling the obligation; or if, before the creditor can, with reasonable diligence, reach such person, he becomes insolvent. N. Y. C. C., Sec. 740. CHAPTER VI. RELEASE. SECTION 1541. Obligation extinguished by release. extinguished SEC. 1541. An obligation is extinguished by a release obligation therefrom given.to the debtor by the creditor, upon a new consideration, or in writing, with or without new consideration. A release under scal extinguishes the debt, notwithstanding the provision of the Revised Statutes, allowing the want of consideration for a sealed instrument to be shown (Stearns vs. Tappin, 5 Buer, 294). But by the present law, a release, with neither a seal nor a new consideration, is void (Von Gerhard vs. Lighte, 13 Abb. Pr., 101; Seymour vs. Minturn, 17 Johns., 169; Dewey vs. Derby, 20 id., 462; Jackson vs. Stackhouse, 1 Cow., 122). The justice of its restrictions may well be doubted. The Commissioners recommend the substitution of the words "in writing" for "under seal." N. Y. C. C., Sec. 741. NOTE. See note to Sec. 1524 of this Code. In this instance, the New York section and note accords with our abolition of seals. (Stats. 1867, 31.) to SEC. 1542. A general release does not extend claims which the creditor did not know or suspect to exist in his favor at the time of executing the release. N. Y. C. C., Sec. 742. SEC. 1543. A release of one of two or more joint debtors does not extinguish the obligations of any of the others, unless they are mere guarantors; nor does it affect their right to contribution from him. This provision is new (see Cornell vs. Masten, 35 Barb., 157; Bronson vs. Fitzhugh, 1 Hill, 185; Hoffman vs. Dunlop, 1 Barb., 185; Parsons vs. Hughes, 9 Paige, 591; Catskill Bank vs. Messenger, 9 Cow., 37; Rowley vs. Stoddard, 7 Johns., 207). By statute, a release may be so drawn as to discharge one only of several joint debtors (3 R. S. [5th ed.], 65; Laws 1838, Chap. 257); and as the intention of the creditor is evident enough from the form of the release, the justice of this provision can hardly be disputed. N. Y. C. C., Sec. 743. by release. Certain claims not affected by general release. Release of debtors. several joint |