The case was not distinguished from ordinary unilateral obligations. The draftsman of the American Negotiable Instruments Law,65 however, copied the provisions of the English act, and as this law has been enacted, almost universally throughout the United States,66 a written renunciation or discharge of a bill or note or of the liability of any party thereon is now good without consideration.67

1834. Rescission of contracts under seal.

If the original contract was under seal the same questions are presented as where the contract is expressed by an unsealed writing, with the additional difficulty, which at common law was insuperable, that an obligation by deed could not be discharged or varied by anything of inferior nature.68 This rule was applicable to any discharge attempted either before breach of the deed or after the breach of the deed if the obligation created by the deed was to pay a fixed sum of money. If, however, a covenant was for the performance of anything other than the payment of a fixed sum of money, breach of the covenant gave rise merely to a right of action for unliquidated damages, and such a right of action was subject to the same rules as to discharge that are applicable to simple contracts."

468, 14 So. 879; Upper San Joaquin Co. v. Roach, 78 Cal. 552, 21 Pac. 304; Rogers v. Kimball, 121 Cal. 247, 53 Pac. 648; Heckman v. Manning, 4 Col. 543; Adamson v. Lamb, 3 Blackf. 446; Denman v. McMahin, 37 Ind. 241; Carter v. Zenblin, 68 Ind. 436; Hanlon v. Doherty, 109 Ind. 37, 9 N. E. 782; Franklin Bank v. Severin, 124 Ind. 317, 24 N. E. 977; Shaw v. Pratt, 22 Pick. 305; Smith v. Bartholomew, 1 Met. 276, 35 Am. Dec. 365; Bragg v. Danielson, 141 Mass. 195, 4 N. E. 622; Hale v. Dressen, 76 Minn. 183, 78 N. W. 1045; Henderson v. Henderson, 21 Mo. 379; Irwin v. Johnson, 36 N. J. Eq. 347; Crawford v. Millspaugh, 13 Johns. 87; Seymour v. Minturn, 17 Johns. 169, 8 Am. Dec. 380; In re Campbell's Est., 7 Pa. 100, 101, 47 Am. Dec. 503; McGuire v.

Adams, 8 Pa. 286; Kidder v. Kidder, 33 Pa. 268; Horner's App., 2 Pennypacker, 289; Corbett v. Lucas, 4 McCord L. 323. See, however, Nolan v, Bank of New York, 67 Barb. 24, 34.

65 Neg. Inst. Law, sec. 122; Brannan, Neg. Inst. Law (3d ed) p. 344; and see supra, § 1192.

66 See supra, § 1135.

67 In Baldwin v. Daly, 41 Wash. 416, 83 Pac. 724, it was held that under the Negot. Inst. Law an oral discharge supported by consideration was ineffectual, the court regarding the statute as requiring every discharge to be in writing. But this is clearly unsound.

68 See cases in the following section, passim.

69 Blake's Case, 6 Coke, 342.

§ 1835. Variation of covenant by subsequent contract or waiver.

Accordingly, if an obligation under seal created reciprocal rights, a mutual agreement before breach of the obligation to surrender such rights or to substitute others for them did not discharge or alter the effect of the deed.70 The suggested mutual agreement by parol evidently might contain all the requisite elements of a contract, but there seems no recognition of its validity as a contract in any decision until about the beginning of the nineteenth century, and it is hard to distinguish it from an unexecuted accord which was held not valid as a contract. There seem early instances, however, where the obligation of a sealed instrument was in effect varied by excusing performance of an obligation where the obligee had actually prevented the obligor from performing.72It seems but a step from such decisions to hold that a permission or parol agreement which induces the obligor to refrain, amounts in effect to prevention and is an excuse.] Prior to the Judiciary Act, however, the English court declined to take this step; " but some American courts did so at an earlier date without statutory authority.74

70 Rogers v. Payne, 2 Wils. 376; Braddick v. Thompson, 8 East, 344; West v. Blakeway, 2 Man. & G. 729; Ellen v. Topp, 6 Ex. 424; Chapman v. McGrew, 20 Ill. 101; Herzog v. Sawyer, 61 Md. 344, 352. See also infra, § 1849.

71 Allen v. Harris, 1 Ld. Raym. 122; Lynn v. Bruce, 2 H. Bl. 317; Reeves v. Hearne, 1 M. & W. 323. In Braddick v. Thompson, 8 East, 344, 346, the court said obiter, in denying that a parol agreement could discharge a bond: "His only remedy was by bringing a cross-action upon the agreement against the plaintiff, for suing upon the bond in breach of such agreement."

72 See cases cited in the quotation from Fleming v. Gilbert, 3 Johns. 528, infra, n. 74.

73 Thompson v. Brown, 1 Moore,

73

358; Sellers v. Bickford, 1 Moore, 460; Gwynne v. Davy, 2 Scott's N. R. 29. 74 In Fleming v. Gilbert, 3 Johns. 528, the court thus dealt with such a case:-"The condition of the bond substantially is, that the defendant should, by a certain day, procure and deliver to the plaintiff, a bond and mortgage which he had given to Isaiah Gilbert, and to discharge the same from the record. The defendant, within the time limited, did procure the bond and mortgage, and tendered and offered them to the plaintiff; and did also offer to do whatever the plaintiff should require for the further discharge of the bond and mortgage, or the record thereof; but the plaintiff, not knowing at that time what was further necessary, did discharge the defendant from the strict and literal performance of the bond, and entered

§ 1836. Modern relaxation of early rule.

After the passage of the Common Law Procedure Act of 1854 in England, permitted the use of equitable pleas at law,75 it was not only held that such a parol agreement if supported by valid consideration was in itself a binding contract, but it was also said that the performance of the contract would "be ground for an unconditional perpetual injunction against proceeding upon the deed," and consequently would be the basis of a good equitable plea in an action at law.76 At the present day this doctrine would be generally accepted. Indeed, many modern authorities go farther than this. Even though the parol agreement has not been performed, if it was intended in substitution of the earlier sealed contract, this intention is frequently given full effect. In jurisdictions where by statute the

into another engagement respecting the further proceedings. The plaintiff's conduct can be viewed in no other light than as a waiver of a compliance with the condition of the bond, so far as it related to a discharge of the mortgage on record; and I see no infringement of any rule or principle of law, in permitting parol evidence of such waiver. It is a sound principle, that he who prevents a thing being done, shall not avail himself of the non-performance he has occasioned. Had not the plaintiff dispensed with a further compliance with the condition of the bond, it is probable that the defendant would have taken measures to ascertain what steps were requisite to get the mortgage discharged of record, and would have literally complied with the condition of the bond. We find the rule above alluded to, recognized in ancient as well as in modern decisions. Thus, where the condition of a bond was to raise a mill, the obligor came to the obligee, and told him everything was ready to erect the mill, and asked him when he would have him come and put it up; the obligee answered, that he would not have it, and discharged

him entirely of the erecting of the mill, and that was held sufficient to excuse him from the performance. (1 Roll. Abr. 453; pl. 5, Year Book, 2 Hen. VI. 37).

"So also, in an action of covenant upon a charter-party, for demurrage, where it appeared that the ship-owner had waived all claim to demurrage, and consented that the time should be enlarged within which the cargo was to be discharged, Lord Kenyon said, that if the matter had been properly pleaded, it would have been a good and legal defence against any claim for demurrage. (1 Esp. Cas. 35.)

"Upon the same principle, it is held tht a tender and refusal, or waiver, (which must always rest in parol), is equivalent to an actual performance; (1 Stra. 535, Doug. 661), and in Keating v. Price (1 Johns. Cas. 22), this court allowed evidence of a parol agreement to enlarge the time of performance of a written contract." See also Baker v. Whiteside, Breese (Beecher's ed.), 174.

75 Section 83.

76 Nash v. Armstrong, 10 C. B. (N. S.) 259.

effect of a seal has been abolished or seriously diminished, this result is based on clear principle, for if a contract under seal is reduced to the level of a mere written contract in other respects, there is no reason why it should not be discharged or varied by subsequent written or oral bargains." But in leading jurisdictions, where seals still have in most respects their old value, the rule forbidding discharge or variation by parol has been done away with.78 In some jurisdictions, however, this rule still persists,79 and as it has the support of the whole early law, English and American, the matter cannot be considered settled in any jurisdiction unless the court of that jurisdiction has either abrogated the rule, in which case it is not likely to recede, or has expressly considered it in a recent case. But even in jurisdictions most strongly disposed to adhere to the early law, it seems probable that the early authorities (alluded to in the previous section) giving effect to a parol permission after it had been acted on would nearly or quite universally be extended to cover a case where a parol agreement supported by sufficient consideration to vary a sealed instrument has been executed.80

77 So held in Barton v. Gray, 57 Mich. 622, 24 N. W. 638; Blagborne v. Hunger, 101 Mich. 375, 59 N. W. 657; Bowman v. Wright, 65 Neb. 661, 91 N. W. 580, 92 N. W. 580; McIntosh v. Miner, 37 N. Y. App. Div. 483, 55 N. Y. S. 1074.

78 Steeds v. Steeds, 22 Q. B. D. 537; Canal Co. v. Ray, 101 U. S. 522, 25 L. Ed. 792; Hastings v. Lovejoy, 140 Mass. 261, 2 N. E. 776; Tuson v. Crosby, 172 Mass. 478, 52 N. E. 744; Stees v. Leonard, 20 Minn. 494; McGrann v. North Lebanon R. Co., 29 Pa. 82; Hamilton v. Hart, 109 Pa. 629; Hydeville Co. v. Eagle R. R. Co., 44 Vt. 395. See also Imperator Realty Co. v. Tull, (N. Y.), 127 N. E. 263; Phelps v. Seely, 22 Gratt. 573.

79 Miller v. Hemphill, 9 Ark. 488; Levy v. Very, 12 Ark. 148; Smith v. Lewis, 24 Conn. 624, 63 Am. Dec. 180; Dwy v. Connecticut Co., 89 Conn. 74, 92 Atl. 833; L. R. A. 1915 E. 800; Tischler v. Kurtz, 35 Fla. 323, 17 So.

661; Sinard v. Patterson, 3 Blackf. 353; McMurphy v. Garland, 47 N. H. 316; Armijo v. Abeytia, 5 N. Mex. 533; Delacroix v. Bulkley, 13 Wend. 71; Eddy v. Graves, 23 Wend. 82; Coe v. Hobby, 72 N. Y. 141, 28 Am. Rep. 120; Smith v. Kerr, 108 N. Y. 31, 15 N. E. 70, 2 Am. St. Rep. 362; McKenzie v. Harrison, 120 N. Y. 260, 263 (but see McCreery v. Day, 119 N. Y. 1, 23 N. E. 198, 6 L. R. A. 503, 16 Am. St. Rep. 793; McIntosh v. Miner, 37 N. Y. App. Div. 483, 55 N. Y. S. 1074; Imperator Realty Co. v. Tull, (N. Y.) 127 N. E. 263); Bond v. Jackson, Cooke, 500; Sherwin v. Rutland &c. R. Co., 24 Vt. 347. Some of these decisions would not perhaps now be followed in their own jurisdictions.

80 This has been clearly stated in Illinois in a number of cases: Starin v. Kraft, 174 Ill. 120, 50 N. E. 1059; Palmer v. Meriden Britannia Co., 188 Ill. 508, 59 N. E. 247; Brettmann v.

The doctrine of exoneration or discharge of a contract before breach without consideration never applied to sealed instruments.8

81

§ 1837. Accords and similar agreements.

If an agreement for the discharge of a sealed obligation contemplates not an immediate mutual surrender of rights but the performance of something other than the duty imposed by the deed in satisfaction of that duty, and further contemplates that until such performance the deed shall remain in force, the agreement is one of accord if made after a right of action on the deed has arisen; if made before a right of action has arisen the agreement is not properly called an accord but such agreements are more conveniently considered in conection with accords.

§ 1838. Definition of accord and satisfaction.

"From time immemorial the acceptance of anything in satisfaction of the damages caused by a tort would bar a sub- ! sequent action against the wrong-doer." 82 As this doctrine arose long before the validity of simple contracts was recognized, it is obvious that it was not by virtue of any preliminary agreement or accord between the parties, but only by virtue of the ultimate acceptance of the satisfaction that the discharge was effected. The only importance of the accord was as evi

Fischer, 216 Ill. 142, 74 N. E. 777; Lanum v. Harrington, 267 Ill. 57, 107 N. E. 826; Yockey v. Marion, 269 Ill. 342, 110 N. E. 34, 37. These earlier Illinois decisions are discussed by Professor Decker in 1 Ill. Law Bull, 152.

In New York the same distinction was taken in Imperator Realty Co. v. Tull, 179 N. Y. App. D. 761, 167 N. Y. S. 210, but the decision was reversed in 127 N. E. 263, the court holding that the executory parol agreement estopped the parties from asserting the violation of the original covenant. The California Civil Code, § 1698, in terms adopts for all written contracts the same rule, that they "may be altered by a contract in

writing, or by an executed oral agreement, and not otherwise; " and this provision is copied in Oklahoma Rev. Laws (1910) § 988. See supra, § 1828. 81 Irwin v. Johnson, 36 N. J. Eq. 437; Traphagen v. Voorhees, 44 N. J. Eq. 21, 12 Atl. 895; Tulane v. Clifton, 47 N. J. Eq. 351, 20 Atl. 1086; Jackson v. Stackhouse, 1 Cow. 122, 13 Am. Dec. 514; Albert's Ex. v. Ziegler's Ex., 29 Pa. 50; Horner's App., 2 Pennypacker, 289; Ewing v. Ewing, 2 Leigh, 337.

82 9 Harv. L. Rev. 55, by Ames, citing Y. B. 21 & 22 Edw. I. 586 (Rolls series); Y. B. Hen. VI. 25–13; Y. B. 34 Hen. VI. 43, 44; Andrew v. Boughey, Dyer, 75a, pl. 23.