CHAPTER III.

FORMS OF SPECIAL PLEAS.

$ 3230. Accord and satisfaction.

[TITLE.]

Form No. 708.

The defendant answers to the complaint:

I. That on the ..... day of

of B. C. for

18.., at

he delivered to the plaintiff the promissory note

.. dollars.

II. That the plaintiff accepted the same in full satisfaction and discharge of the claim [or demand] set up in the complaint.1

§ 3231. Essential averments. The defense of accord and satisfaction must be specially pleaded.2 And evidence of the discharge of the debt sued on, pending the action, is admissible only under this plea.3 The plaintiff on an execution may receive promissory notes by a special agreement, as an absolute payment of the same, but the agreement must be proved by testimony other than the sheriff's certificate. An accord and satisfaction after issue joined must be pleaded specially as happening since the last continuance. A plea of accord and satisfaction must aver the payment and receipt in satisfaction. A mere readiness to perform the accord, or a tender of performance, or even part performance and readiness to perform the

1 For a form in the defense of accord and satisfaction, see 2 Greenl. Ev. 28, note, and authorities there cited.

2 Piercy v. Sabin, 10 Cal. 30; Jacobs v. Day, 5 Misc. 410; Berdell v. Bissell, 6 Col. 162; Coles v. Soulsby, 21 Cal. 47; Sweet v. Burdett, 40 id. 97; Young v. Jones, 64 Me. 563; 18 Am. Rep. 279; Watson v. Elliott, 57 N. H. 511; Ellis v. Bitzer, 2 Ohio, 89; 15 Am. Dec. 534.

3 Jessup v. King, 4 Cal. 331.

4 Mitchell v. Hockett, 25 Cal. 542; 85 Am. Dec. 151.

5 Good v. Davis, Hempst. 16.

6 Maze v. Miller, 1 Wash. C. C. 328; United States v. Clarke, Hempst. 315; see Cal. Civil Code, §§ 1521–1524.

rest is not enough. A plea which alleges that the defendant executed to the plaintiff a deed of certain property, which was to be absolute in case the note sued on was not paid by a certain day, without alleging that the deed was accepted as a satisfaction, is bad.8

§ 3232. What is and when allowed. A satisfaction may result from the acceptance of another as debtor, or from action for part of an entire demand;10 or a payment of a less sum where the amount is disputed, but not otherwise.11 An agreement to receive some other thing instead of that specified in the contract, when executed is good;12 but part payment and tender is an unexecuted accord, and not a satisfaction.13 This plea is allowed to be put in after the defendant has already pleaded, where some new matter of defense arises after issue joined, such as payment, a release by the plaintiff, the discharge of the defendant under an insolvent or bankrupt law, and the like.14 § 3233. Alteration of contract, releasing guarantor.

the plaintiff agreed with C. D. in the complaint mentioned, in consideration of dollars, to extend the time of payment of the rent guaranteed by the defendant

days.

.....

II. That the defendant had no knowledge of the said extension, and did not then, nor has he since, assented thereto.

7 Hearn v. Kiehl, 38 Penn. St. 147; 80 Am. Dec. 472.

8 Shaw v. Burton, 5 Mɔ. 578.

9 Van Etten v. Troudden, 1 Hun, 432.

10 O'Beirne v. Lloyd. 43 N. Y. 248.

11 Williams v. Irving, 47 How. Pr. 440; Maack v. Schneider, 51 Mo. 92; Truax v. Miller, 48 Minn. 62; Sicotte v. Barber, 83 Wis.

431; see Holton v. Noble, 83 Cal. 7.

12 Howard v. Norton, 65 Barb. 161.

13 Noe v. Christie, 51 N. Y. 270.

142 Burr. L. Dict. 353; 3 Bl. Com. 316; 2 Tedd's Pr. 847; 1 Burr. Pr. 232; Steph. Pl. 64. A plea of accord and satisfaction founded upon services should aver that the services were accepted in satisfaction of the plaintiff's demand, otherwise the plea is bad. Johnson v. Hunt, 81 Ky. 321.

The defendant answers to the complaint, and alleges: That there was at the commencement of this action, and still is, another action pending in the court of the [describe the court], between the same parties, and for the same cause of action as that in the complaint herein stated and alleged.15

§ 3235. Discontinuance, effect of foreign suit pending. It would seem that under the decisions of the New York courts a discontinuance of the other action, even after the answer, avoids this defense.16 That a prior suit in personam, between the same parties and for the same cause of action, was pending in another state, at the time of bringing the action, is not a defense; 17 but the pendency of a suit between the same parties and respecting the same subject-matter in another state may be pleaded in abatement in the courts of the United States.18 Where an appearance in a foreign attachment suit in another state is after the service of a writ in an action between the same parties in this state, the pendency of the foreign suit can not be pleaded in bar or abatement of the action here.19

§ 3236. Essential allegations — identity of cause and parties. In New York it is not enough to allege service of process for the same cause, without showing a declaration or complaint for the same cause.20 In an action to recover land, an answer of another action pending for the same cause must show that the same title, the same injury, and the same subject-matter are in controversy in both actions.21 If the second is brought on

15 For form of a plea of a foreign attachment, see Wheeler v. Raymond, 8 Cow. 311; Russell v. Ruckman, 3 E. D. Smith, 419; Embree v. Hanna, 5 Johns. 101; Donovan v. Hunt, 7 Abb. Pr. 29; Hecker v. Mitchell, 5 id. 453.

16 Beals v. Cameron, 3 How. Pr. 414; Averill v. Patterson, 10 id. 85; see, also, Moore v. Hopkins, 83 Cal. 270; Dyer v. Scalmanini, 69 id. 639; Hixon v. Schooley, 26 N. J. L. 461.

17 Seevers v. Clements, 28 Md. 426; and see Douglass v. Insurance Co., 138 N. Y. 209; 34 Am. St. Rep. 448, and note.

18 Ex parte Balch, 3 McLean 221.

19 Wilson v. Mechanics' Bank, 45 Penn. St. 488.

20 Gardner v. Clark, 21 N. Y. 399.

21 Larco v. Clements, 36 Cal. 132.

a title acquired after the commencement of the first, the defense will not avail.22 To sustain this defense, it must appear that the two actions are for the same identical cause; but where the plaintiff seeks to split an entire demand, and brings a suit for a part, and then another suit for the residue, the pendency of the former may be pleaded in abatement or bar of the second action.23 The defense of a prior lis pendens is available only where the plaintiff, at least, in both actions is the same.24 It is enough to state merely that the action was between the same parties. Describing the parties is unnecessary.25 In a plea in abatement that a prior suit is pending, the absence of an affidavit verifying allegations in the plea that parties and cause of action are the same is fatal.26

A

§ 3237. What must be shown. A plea to abate an action by reason of another action pending is not good unless it shows that the pending action was brought for the same cause as the one in which the plea is interposed.27 To support a plea in abatement founded on the pendency of a prior action, it is necessary to show that process was issued in such action.28 plea which sets up, in bar of an action upon a contract, that property was attached in a previous suit to answer for the same demand, and was lost, should show how the loss occurred.29 A plea in abatement setting up pendency of a prior suit must show that the other court has jurisdiction of the action there pending.30 It has been held in New York that the answer

22 Vance v. Olinger, 27 Cal. 358.

23 Bendernagle v. Cocks, 19 Wend. 207; 32 Am. Dec. 448. The pendency of an action for an accounting may be pleaded in abatement of a subsequent action between the same parties founded on one or more items involved in the prior action. Conbrough v. Adams, 70 Cal. 374.

24 O'Connor v. Blake, 29 Cal. 312; Walsworth v. Johnson, 41 id. 61.

25 Ward v. Dewey, 12 How. Pr. 193.

26 Trenton Bk. v. Wallace, 9 N. J. L. 83; White v. Whitman, 1 Curtis C. C. 494.

27 Calaveras Co. v. Brockway, 30 Cal. 325; and see Putnam v. Lyon, 3 Col. App. 144.

28 Primm v. Gray, 10 Cal. 522; see, also, People v. De La Guerra, 24 id. 73.

29 Starr v. Moore, 3 McLean, 354.

30 White v. Whitman, 1 Curtis C. C. 494; Ex parte Balch, 3 McLean, 221.

should show where the action is pending. But pendency of another action in a court of another state, or in a court of the United States, is not generally a good defense.31

§ 3238. When defense does and does not lie. A plea in abatement may be interposed to the entire action on the ground that another suit was pending for the same cause of action if the copy of the record be annexed. Still the proofs must show that the first cause of action is for the same matter sued for in the second suit.32 It would also appear that proceedings other than an action-e. g., by petition-may be pleaded as a defense in the same way.33 Where defendant pleads another suit pending, and it appears no summons was ever issued on the complaint, and there was no voluntary appearance on the part of the defendant, it was held that there was no suit pending.34 So, where the complaint is so defective that a judgment entered thereon would be a nullity.35 So, where the other suit pending was for only a part of the same matter sued for in the second suit.36 The pendency of an action to quiet title to land will not abate a subsequent action between the same parties to

31 Cook v. Litchfield, 5 Sandf. 330; Burrows v. Miller, 5 How. Pr. 51; and see Republic of Mexico v. Arrangois, 1 Abb. Pr. 437; People v. The Sheriff, etc., 1 Park. Cr. 659; Hecker v. Mitchell, 5 Abb. Pr. 453; Bowne v. Joy, 9 Johns. 221; Walsh v. Durkin, 12 id. 99; O'Reilly v. Railroad Co., 16 R. I. 388.

32 Thompson v. Lyons, 14 Cal. 42; People v. De La Guerra, 24 id. 73. A plea in abatement on the ground of the pendency of a former action will not be sustained, unless it appears that the plaintiff in the former action is the same as in the action in which the plea is offered, and that the cause of action in both is founded upon one entire contract, or upon one single or continuous tort. Lindsay v. Stewart, 72 Cal. 540; and see Hollister v. Stewart, 111 N. Y. 644; Phelps v. Railroad Co., 37 Minn. 485; 5 Am. St. Rep. 867; Bryan v. Scholl, 109 Ind. 367. Where two joint tort-feasors are sued separately for the same tort, the pendency of the suit against one can not be pleaded in abatement of the suit against the other. State v. Boyce, 72 Md. 140; 20 Am. St. Rep. 458; Livingston v. Bishop, 1 Johns. 290; 3 Am. Dec. 330. A plea in abatement interposed to two causes of action, good as to one cause and bad as to the other, is demurrable. Pappe v. Trout, 3 Okl. 260.

33 See Groshon v. Lyon, 16 Barb. 461; and see Ogden v. Bodie, 2 Duer, 611.

34 Weaver v. Conger, 10 Cal. 233; Primm v. Gray, id. 522.

35 Reynolds v. Harris, 9 Cal. 338.

36 Thompson v. Lyon, 14 Cal. 39.