But, even at common law, the death of a party after a verdict had been rendered would not operate as a discontinuance, for the judgment may be considered to relate back to the time of the verdict, and may be entered as of a preceding day or term of the court.83 A similar rule has been provided in many states by statute.8

Accord and Satisfaction

"Accord," says Sir William Blackstone, "is a satisfaction agreed upon between the party injuring and the party injured, which, when performed, is a bar to all actions upon this account." 85 More specifically, the accord is the preliminary agreement to accept something in liquidation of the existing liability, which remains outstanding until the agreement has been executed and satisfaction made.86

At the outset we are therefore met with the question whether an accord has been established; i. e., whether there was any agreement that upon the performance of certain conditions the wrongdoer should be discharged. A mere offer upon the latter's part to make compensation will be insufficient to defeat recovery, where acceptance by the party wronged is not shown.$7

83 Brown v. Wheeler, 18 Conn. 199; Kelly v. Riley, 106 Mass. 339, 8 Am. Rep. 336; Chase v. Hodges, 2 Pa. 48.

84 "After verdict, report or decision in an action to recover damages for a personal injury, the action does not abate by the death of a party, but the subsequent proceedings are the same as in a case where the cause of action survives." Code Civ. Proc. N. Y. § 764. But this does not apply to cases of nonsuit directed by the court on trials by jury, since the word "decision" refers only to a determination in actions tried by the court alone. Corbett v. Twenty-Third St. R. Co., 114 N. Y. 579, 21 N. E. 1033.

85 Commentaries, book III, p. 15.

86 See Rogers v. City of Spokane, 9 Wash. 168, 37 Pac. 300; Kromer v. Heim, 75 N. Y. 576, 31 Am. Rep. 491.

87 Thus, where a cause of action for obstructing a right of way has accrued, any offer on the part of defendant to remove the obstruction cannot defeat plaintiff's recovery for damages received prior to such offer. McTavish v. Carroll, 13 Md. 429. To the same effect, Hensler v. Stix, 113 Mo. App. 162, 88 S. W. 108; Gilman v. Noyes, 57 N. H. 627. For offer to return converted property as a defense to an action of trover. See infra, p. 385.

88

The fact that performance must have taken place should also be emphasized, for an accord executory, without performance accepted, is no bar, a fact which was well illustrated where, in an action against a municipality to recover damages received through the latter's negligence, the defendant pleaded that plaintiff had agreed to accept a certain sum in full discharge of his claim, and that the city council had directed the issuance of warrants therefor, which were ready for delivery. The plea was insufficient, for the sum had not been paid.""

While an accord and satisfaction usually involves the payment of money or the delivery of property," this is not essential. It may, for instance, consist in the discontinuance of an action which the tort-feasor is bringing against the party wronged, or even the publication of an apology.

91

92

For the purpose of determining whether there was a satisfaction, it is necessary to ascertain exactly what the agreement of the parties was. Thus, as in the cases previously cited. it may have been that the wrongdoer was not to be discharged until the cash was paid, the property delivered, the action discontinued, the apology published, or the act, whatever it was, performed, in which case nothing short of performance will work a satisfaction. On the other hand, the party wronged may have agreed to accept the promise of the wrongdoer in lieu of his claim against the latter, and under such conditions, when the promise is given, the plaintiff's original cause of ac

88 Bacon, Abr. tit. "Accord and Satisfaction," C.

89 Rogers v. City of Spokane, 9 Wash. 168, 37 Pac. 300. To the same effect, Smith v. Cranford, 84 Hun, 318, 32 N. Y. Supp. 375; Gulf, C. & S. F. Ry. Co. v. Gordon, 70 Tex. 80, 7 S. W. 695.

90 Curley v. Harris, 11 Allen (Mass.) 112; Stockton v. Frey, 4 Gill (Md.) 406, 45 Am. Dec. 138.

91 Thus, where A. and B. have suits for false imprisonment pending against each other, an agreement to discontinue their respective suits, followed by an actual discontinuance, will be a good accord and satisfaction. Foster v. Trull, 12 Johns. (N. Y.) 456.

2 It is a good plea to an action for libel that plaintiff and defendant agreed to accept the publication of mutual apologies in satisfaction and discharge of the causes of action, damages, and costs, and that such apologies were published. Boosey v. Wood, 3 H. & C. 484, 11 Jur. N. S. 181, 34 L. J. Exch. 65, 11 L. T. Rep. N. S. 639, 13 Wkly. Rep. 317.

tion may be gone, and he may be remitted to a suit upon the substituted agreement.""

It must appear, moreover, that the payment or other consideration was accepted in discharge of the wrongdoer's liability, and thus, where such payment is made by or consideration moves from a third party, who is not acting as agent of the wrongdoer, nor is a joint tort-feasor with him, it is generally considered that the intent of the parties was not to destroy the claim, though this, after all, is merely a strong presumption, and may be overthrown by evidence to the contrary. For the same reason the mere fact that the injured party may have been indemnified by insurance will prove no defense to the tort-feasor, either in whole or in part.9

95

It goes without saying that the transaction which it was alleged constitutes an accord and satisfaction must have been entered into voluntarily by the party wronged, and not through fraud, mistake, or duress." But, if such transaction

98 Plaintiff's cattle were killed through the negligence of defendant, and after a mutual adjustment of damages the latter gave a duebill for the amount. The giving of a duebill will not generally be regarded as satisfaction, but here it was found that it was so accepted by the plaintiff. Shaw v. Chicago, R. I. & P. Ry. Co., 82 Iowa, 199, 47 N. W. 1004. To the same effect, Ellis v. Bitzer, 2 Ohio, 89, 15 Am. Dec. 534.

94 Voluntary payment of money to an employé injured by the negligence of defendant merely as "wages" during the period of disability does not constitute a satisfaction. Sobieski v. St. Paul & D. R. Co., 41 Minn. 169, 42 N. W. 863. To the same effect, Hewitt v. Flint & P. M. R. Co., 67 Mich. 61, 34 N. W. 659; Gulf, C. & S. F. Ry. Co. v. Gordon, 70 Tex. 80, 7 S. W 695.

95 Western Tube Co. v. Zang, 85 Ill. App. 63; Atlantic Dock Co. V. Mayor, etc., of City of New York, 53 N. Y. 64; Thomas v. Central R. Co. of New Jersey, 194 Pa. 511, 45 Atl. 344; Sieber v. Amunson, 78 Wis. 679, 47 N. W. 1126. For discharge of joint wrongdoer by release to a co-tort-feasor, see infra, p. 124.

96 Western & A. R. R. v. Meigs, 74 Ga. 857; Kellogg v. New York Cent. & H. R. R. Co., 79 N. Y. 72; Missouri, K. & T. R. Co. v. Fuller, 72 Fed. 467, 18 C. C. A. 641, affirmed 168 U. S. 707, 18 Sup. Ct. 944, 42 L. Ed. 1215.

97 Bliss v. New York Cent. & H. R. R. Co., 160 Mass. 447, 36 N. E. 65, 39 Am. St. Rep. 504.

is voluntary on his part, the mere fact that the amount which he has received may have been inadequate remuneration for his injury will not invalidate it, for the sufferer will be held bound by his own estimate.98 Furthermore, in order that the injured party may attack what is claimed to be an accord and satisfaction, he must restore or offer to restore to the other party whatever has been received, thus putting the latter in statu quo.99

99

Release and Covenant Not to Sue

Where the parties have arrived at a settlement of their differences, and the tort-feasor has made satisfaction, it is usual for the injured party to execute and deliver a formal release from all liability,1 100 or a covenant not to sue the wrongdoer.101 Though not identical in form, their legal effect is the same when there has been only one tort-feasor. Theoretically a release destroys the claim, while if the sufferer, having given a covenant not to sue, should thereafter bring an action, the wrongdoer could only sue for breach of covenant. Yet to avoid circuity of action the covenant will under such circumstances be considered a discharge and bar.10

98 Hayes v. East Tennessee, V. & G. R. Co., 89 Ga. 264, 15 S. E. 361; Curley v. Harris, 11 Allen (Mass.) 112.

Lyons v. Allen, 11 App. D. C. 543; Strodder v. Southern Granite Co., 99 Ga. 595, 27 S. E. 174; Levister v. Southern Ry. Co., 56 S. C. 508, 35 S. E. 207.

"Any other [rule] would permit a party to prosecute an action without taking any chances and with means furnished by his adversary-would enable an unscrupulous plaintiff to obtain as large an amount as possible in settlement of his alleged cause of action through negotiation with the defendant, and with the funds thus obtained seek to secure a larger sum in an action brought upon the same cause of action, and without running any risk of losing what he first obtained." Doyle v. New York, O. & W. R. Co., 66 App. Div. 398, 404, 72 N. Y. Supp. 936, 939, per McLennan, J.

100 Papke v. G. H. Hammond Co., 192 Ill. 631, 61 N. E. 910; Spitze v. Baltimore & O. R. Co., 75 Md. 162, 23 Atl. 307, 32 Am. St. Rep. 378; Gibson v. Western New York & P. R. R. Co., 164 Pa. 142, 30 Atl. 308, 44 Am. St. Rep. 586.

101 City of Chicago v. Babcock, 143 Ill. 358, 32 N. E. 271; Ellis v. Esson, 50 Wis. 138, 6 N. W. 518, 36 Am. Rep. 830.

102 City of Chicago v. Babcock, supra; Ellis v. Esson, supra.

But where there are several joint tort-feasors, the effect of a release when given to one or more, but not to all, differs from that of a covenant. A release will then operate to discharge all, a rule which seems to be based upon the nature of their liability, which is one and indivisible, and is necessarily destroyed by the discharge of one. Nor will the effect of a release depend upon the validity of the cause of action, and if the claim is made against one, and it is satisfied, all who may be liable are discharged, whether the one released be in fact liable or not. The plaintiff will be estopped to say that he had no claim against the party who settled, but compelled him to buy peace by the settlement of a claim that was groundless, for this would be an allegation of his own wrongful act.1 103 But the covenant not to sue will be given its strict technical meaning, for the rule which, in the case of a single wrongdoer, permits it to be treated as a release to avoid burdening the courts with cross-actions, one on the original liability and the other on the covenant, cannot be fairly applied. Consequently a covenant not to sue one of several joint tort-feasors does not operate to discharge the others from liability.104

Now we come to a mooted question. Suppose the instrument is in terms a release of less than the entire number of joint tort-feasors, but a right to sue the others is either expressly or by implication reserved. Some of the courts have held that such a reservation is void, as it is repugnant to the legal effect and operation of the release, and consequently the other wrongdoers are discharged.105 But, on the other hand, authorities of equal weight have said that where it is

103 Tompkins v. Clay St. R. Co., 66 Cal. 163, 4 Pac. 1166; Brown v. City of Cambridge, 3 Allen (Mass.) 474. And see Miller v. Beck, 108 Iowa, 575, 79 N. W. 344.

104 Matheson v. O'Kane, 211 Mass. 91, 97 N. E. 638, 39 L. R. A. (N. S.) 475, Ann. Cas. 1913B, 267; City of Chicago v. Babcock, 143 Ill. 358, 32 N. E. 271; Snow v. Chandler, 10 N. H. 92, 34 Am. Dec. 140. 105 Gunther v. Lee, 45 Md. 60, 24 Am. Rep. 504; McBride v. Scott, 132 Mich. 176, 93 N. W. 243, 61 L. R. A. 445, 102 Am. St. Rep. 416, 1 Ann. Cas. 61; Ellis v. Bitzer, 2 Ohio, 89, 15 Am. Dec. 534; Seither v. Philadelphia Traction Co., 125 Pa. 397, 17 Atl. 338, 4 L. R. A. 54, 11 Am. St. Rep. 905; Abb v. Northern Pac. Ry. Co., 28 Wash. 428, 68 Pac. 954, 58 L. R. A. 293, 92 Am. St. Rep. 864.