Sec 998

Where one of several parties jointly liable makes an accord and satisfaction with the common creditor for the common debt, this discharges the debt as to all the debtors;1 though a partial payment does not work a bar.2 When one of several joint creditors makes an accord and satisfaction with the common debtor, this discharges the debt as to all the creditors.3 sec 999. An accord without satisfaction is no bar. It is merely an agreement to do something in future, which, until done, cannot be regarded as extinguishing the right of action. The accord, to be a bar, must be executed before the action brought.4 The accord is a mere negotiation until satisfaction takes place, and the creditor can, until satisfaction, withdraw his acceptance at any time before the satisfaction is received.5 Hence an accord to Accord and satisfaction with one joint creditor or debtor discharges all.

Accord without satisfaction no bar, mand, although the note has been tendered the creditor, if it has not been accepted. In Blake V. Blake, 110 Mass. 202, the agreement was under seal. 'The agreement,' observes Wells, J., 'to accept a part in satisfaction of the whole, so long as it remains executory, will not operate either as payment, satisfaction, or discharge.' In Cushing V. Wyman, 44 Me. 121, the question here presented was fully examined and considered, and it was then held that an executory agreement constituted no bar to a suit."

1 Supra, sec 831,998; Nicholson V. Re-vill, 4 A. & E. 675; Barrett V. R. R., 45 N. Y. 628; Milliken V. Brown, 1 Rawle, 391; see Strang V. Holmes, 7 Cow. 224.

2 Smith V. Bartholomew, 1 Met. 276; Warren V. Skinner, 20 Conn. 559. That the acceptance of negotiable paper from a partner discharges the debt, when accepted in full payment, see Thompson V. Percival, 5 B. & Ad. 925; Therasson V. Peterson, 3 Keys, 636. That the acceptance of a fractional sum from one debtor does not bar the debt, the object being to release him, see Smith V. Bartholomew, 1 Metc. (Mass.).

276; contra, Milliken V. Brown, 1 Rawle, 391; supra, sec 831, 949.

3 Supra, sec 821, 950; Wallace V. Kelsall, 7 M. & W. 264; Clark V. Dins-more, 5 N. H. 136; see Milliken V. Brown, 1 Rawle, 391.

4 Smith's L. C. 7th Am. ed. 601; 2 Ch. on Cont. 11th Am. ed. 1101; Leake, 2d ed. 879; Cooper V. Parker, 15 C. B. 822; Bayley V. Homan, 3 Bing. N. C. 920; Brown V. Perkins, 1 Hare, 564; Gabriel V. Dresser, 15 C. B. 622; Col-lingbourne V. Mantell, 5 M. & W. 292; Warren V. Skinner, 20 Conn. 559; Smith V. Bartholomew, 1 Met. 276; Russell V. Lytle, 6 Wend. 390; Brook-lyn Bk. V. De Grauw, 23 Wend. 342; Anderson V. Turnpike Co., 16 Johns. 86l Keeler V. Neal, 2 Watts, 424; Sprune-berger V. Dentler, 4 Watts, 126; Frost V. Johnson, 8 Ohio, 393; Woodruff V. Dobbins, 7 Blackf. 582; Ballard V. Nooks, 2 Pike, 45; Simmons V. Hamilton, 56 Cal. 493.

5 Allen V. Harris, 1 Ld. Ray. 122; Reeves V. Hearne, 1 M. & W. 323; Mas-sey V. Johnson, 1 Ex. 256; Cushing V. Wyman, 44 Me. 121; White V. Gray, 68 Me. 579; Woodward V. Miles, 24 accept goods in place of goods agreed to be delivered to the plaintiff is no bar in an action for breach of contract, unless the goods were delivered and accepted, or unless the defendant was misled by the plaintiff's conduct, or unless there was a novation.1 An agreement, also, to accept a mortgage as security for a debt is no bar to an action for the debt, unless the mortgage was at the time accepted, and the old contract be reconstructed on good consideration by novation.2 It is no answer, also, to a suit on a note that the plaintiff agreed to receive payment by instalments, there being no part reception and consideration for delay.3 - The plea must allege that the matter was accepted in satisfaction.4 Tender of satisfaction, after it is agreed upon, must be formally made and received, in order to be effective.5 - It may be, however, that after an accord, the debtor may, on the faith of it, take steps which will preclude the creditor from disputing the adequacy of a tender of the thing agreed to be accepted in satisfaction.6 Or there may be, on sufficient consideration, a reconstruction of the entire contract, in which case the new contract takes the place of the old, by way of novation.7.