Page:Hempstead's Reports.pdf/343

318     defines to be "a satisfaction agreed upon between the party injuring and the party injured, which, when performed, is a bar to all actions upon this account." 3 Bl. Com. 15; 1 Bac. Abr. Accord, 54.

The question arises in this case, To which of these classes of pleas do the seventh and eighth amended pleas belong? Are they pleas of accord and satisfaction, or of covenants performed? It seems to me that they are not pleas of the latter class, because they fail to aver performance. It is true that they aver part performance, and a readiness and an offer to perform fully, which was refused by the plaintiffs. The defence then is, part performance and a legal excuse assigned for failure to perform fully.

A part performance, and a readiness and offer to perform the residue, is not in all cases equivalent to an actual, full, and complete performance. For example; if A. covenants with B. to do any specific act, as to deliver certain property upon the demand of A. at a certain place, and B. is sued by A. for a failure to deliver the property, B. may show that he could not deliver it, because A. never made the demand, and so bar the recovery of damages, on the ground that he was prevented from performing the contract by the fault of A., and not by any fault of his own.

But suppose the action should be brought by B., can he recover the same amount of A. that he would be entitled to, in case he had actually delivered the property and fully performed his contract? Clearly he could not. He could recover no more than the damages he had sustained by reason of the failure of A. to make the demand, so as to enable B. to comply with his contract. B. never having in fact delivered the property, would not be entitled to recover its value. The property is still his own, and he could only legally recover of A. the damages occasioned by the breach of the contract on the part of A. Thus it appears that part performance and readiness to perform in full does not give a party the same rights.

These, then, are not pleas of covenants performed. To what class do they belong? It appears to me that they can only be considered as pleas of accord, and are they, in the form