goods, in cars sent by one who has contracted to buy the goods, cannot assert that he converted the cars before loading them, and never transferred title or possession to the person by whom the cars were sent to him. 46 So a tenant who holds over after the expiration of his term without a different agreement with his landlord is bound for a new term, though the tenant gives notice that he does not intend to make such an engagement.47 For the same reason, a landlord cannot do an act rightful only on the assumption that a breach of condition is excused and simultaneously or afterwards assert a forfeiture because of that breach.48 And so where money, a check, or other property is offered in settlement of a liquidated or disputed claim, "the law permits but two alternatives, either

honor the draft and thereupon the debtor instructed him that a sale of the cotton by him without honoring the draft must be treated as a settlement of the debt and the creditor thereafter made the sale without paying the draft, this constituted a complete accord and satisfaction of the debt. Wilcox v. Rogers, 13 Ga. App. 410, 79 S. E. 219.

46 Proctor & Gamble Co. v. Peters, 187 N. Y. App. D. 376, 176 N. Y. S. 169.

47 Wolffe v. Wolff, 69 Ala. 549, 44 Am. Rep. 526; Cavanaugh v. Clinch, 88 Ga. 610, 15 S. E. 673; Smith v. Bell, 44 Minn. 524, 47 N. W. 263; Bradley v. Slater, 50 Neb. 682, 70 N. W. 258; Haynes v. Aldrich, 133 N. Y. 287, 31 N. E. 94, 28 Am. St. 636; Smith v. Snyder, 168 Pa. 541, 32 Atl. 64; Adams v. Dunn, 64 Pa. Super. 303; Hunter v. Karcher, 8 S. Dak. 554, 67 N. W. 621. See also Farrell v. Woodward, 101 N. Y. Misc. 560, 167 N. Y. S. 605. Cf. Herter v. Mullen, 159 N. Y. 28, 53 N. E. 700, 44 L. R. A. 703, 70 Am. St. Rep. 517: Canal Elevator &c. Co. v. Brown, 36 Ohio St. 660.

48 In Croft v. Lumley, 6 H. L. C. 672, p. 706, Bramwell, B.,said: "Now I take it to be clear that the lessor could not do an act affirming the ten

ancy, and yet say he did not elect not
to treat the breach as a forfeiture; for
instance, he could not distrain for
rent due at Christmas, and at the
same time effectually say that he did
not elect not to treat an antecedent
breach of covenant as a forfeiture;
his act would be taken to be rightful,
and bind him, rather than his words
make his act wrong; so if the lessee
had sent the rent in a letter, the lessor
could not have kept the money, an-
swering that he kept it, not as rent but
as compensation, and then afterwards
say he had not received it as rent.
So here Martelli had no right to take
this money except on the terms on
which it was offered to him. It is
clear it was never offered to him on
the terms on which he said he was
willing to take it, nor was any assent
given to his taking it on those terms.
Did he then take it wrongfully? Can
he be allowed to set that up? Surely
not. The remark in the judgment
of the Court of Queen's Bench is well
founded, that 'if the party to whom
money is offered does not agree to
apply it according to the express will
of the party offering it, he must refuse
it, and stand upon the rights which
the law gives him"

reject or accept in accordance with the condition. "49 It should be observed that the debtor must make it clear that the check which he sent is offered only on condition that it is taken in full payment. The imposition of an accord and satisfaction on the creditor against his will can be justified only where his taking the check would be tortious except on the assumption of a taking in full satisfaction. 50

§ 1857. Accord and satisfaction with a third person-English

cases.

The question whether accord and satisfaction entered into by the creditor with a person other than the debtor discharges the debt has been much disputed. Even though the third person pays in money the exact amount of the debt there can in strictness be at most an accord and satisfaction, for, as payment by A is a different thing from payment by B, the obligation has not been performed according to its tenor. In the early case of Grymes v. Blofield 51 the defendant pleaded to an action of debt satisfaction given by a third person, but it was held no plea. This is inconsistent with a still earlier case thus stated by Fitzherbert: 52 "If a stranger doth trespass to me and one of his relations, or any other, gives anything to me for the same trespass, to which I agree, the stranger shall have advantage of that to bar me; for, if I be satisfied, it is not reason that I be again satisfied. Quod tota curia concessit." Grymes v. Blofield was, however, followed in Edgcombe v. Rodd, 53 and though its correctness seems to have been doubted in Jones v. Broadhurst, 54 where Cresswell, J., considered the question elaborately, it was reës

elsewhere to the effect that the check, if accepted, would be considered as a compromise of the claim, or that it was tendered as such, or that acceptance thereof would be considered a waiver of plaintiff's right to the balance of their claim. On the contrary, the letter expressly states the payment was made in settlement of 'the difference between' the amount of the plaintiffs' claim and defendants' loss. In view of this statement, the clause in the receipt, reciting the check to be 'in full for the above account,' merely amounts to a receipt in full for the balance of the account, and leaves no room for the contention of a tender as a compromise in settlement of the entire claim of plaintiffs. The letter and receipt together, therefore, lacked the essential element of notice of a tender in full satisfaction

of plaintiff's claim. This may, in fact, have been the intention of defendants. The burden, however, was on them to expressly inform plaintiffs of such intention, either by express words or by circumstances conclusively establishing such intention. Not having done so, their check was merely a payment of part of the undisputed claim, and does not bar plaintiffs from suing for the balance."

51 Cro. Eliz. 541. This case is elaborately considered ir Jones v. Broadhurst, 9 C. B. 173, 195 et seq., and the result of an examination of the original rolls is stated.

52 Tit. "Barre," pl. 166.

53 5 East, 294. See also Thurman v. Wild, 11 A. & E. 453.

54 9 C. B. 173, 193.

tablished soon after by several cases thus summarized by Baron Parke in Simpson v. Eggington: 55

"The general rule as to payment or satisfaction by a third person, not himself liable as a co-contractor or otherwise, has been fully considered in the cases of Jones v. Broadhurst, 9. C. B. 173; Belshaw v. Bush, 11 C. B. 191, and James v. Isaacs, 22 L. J. C. P. 73; and the result appears to be that it is not sufficient to discharge a debtor unless it is made by the third person, as agent for and on account of the debtor, and with his prior authority or subsequent ratification. In the first of these cases, in an elaborate judgment delivered by Mr. Justice Cresswell, the old authorities are cited, and the question whether an unauthorized payment by and acceptance in satisfaction from a stranger is a good plea in bar is left undecided. It was not necessary for the decision of that case. In Belshaw v. Bush, it was decided that a payment by a stranger considered to be for the defendant and on his account, and subsequently ratified by him, is a good payment; and in the last case of James v. Isaacs, a satisfaction from a stranger, without the authority, prior or subsequent, of the defendant, was held to be bad."56 In Simpson v. Eggington 57 it was held that ratification might be made at the trial of such an action, and it seems likely that however the result may be expressed a creditor with whom settlement had been made by a third person would not thereafter be allowed to maintain an action against the debtor.58

§ 1858. American cases.

In the United States the weight of authority sustains the validity of the defence, 59 though wherever there is any evi

Harrison v. Hicks, 1 Port. (Ala.) 423; Underwood v. Lovelace, 61 Ala. 155; Martin v. Quinn, 37 Cal. 55; White v. Cannon, 125 Ill. 412, 17 N. E. 753; Poole v. Kelsey, 95 Ill. App. 233, 240; Ritenour v. Mathews, 42 Ind. 7; Binford v. Adams, 104 Ind. 41, 3 N. E. 753; Thompson v. Conn. Mut. L. I. Co., 139 Ind. 325, 345, 38 N. E. 796; Harvey v. Tama County, 53 Ia. 228, 5 N. W. 130; Porter v. Chicago, etc.,

dence that the payment or satisfaction was made on behalf of the debtor and was ratified by him, these facts are relied upon.60 In New York, however, the strictness of the early English law was long maintained,61 and a similar result has been reached in Kentucky 62 and Missouri.63

§ 1859. Ratification by the debtor.

The difference in the authorities is of less importance than it might seem on first consideration. The courts which require the satisfaction to be made on behalf of the debtor and ratified by him are disposed to find these facts upon rather slight evidence. The difficulty in principle is that the third person