The opinion of the Court was drawn up by
Tenney J.It appears from the testimony of Ivory Jefferds, called by the defendant, that in the summer of 1841, there being due upon the obligation in suit the sum of $446,36 and interest, in pursuance of an understanding between the witness and each party, it was agreed by them, all being together, that in consideration, that the claim, which the witness held against the estate of the plaintiff’s father, of which estate the plaintiff was administrator, should be canceled, being for $356,69, and the defendant would give up to the witness a note, which he held amounting to $331,87, this obligation was *452to be surrendered to the defendant; that the reason, that the papers were not exchanged was because the plaintiff had not with him, the obligation of the defendant.
Jefferds, offered by the defendant as a witness, was objected to, for incompetency, on the ground of interest. If the agreement testified to by the witness, had been carried into effect, his debt to the defendant, and his claim against the estate represented by the plaintiff, would have been paid; otherwise, they are both outstanding. The witness’ demand against the estate being larger than his indebtedness to the defendant, the success of the plaintiff will be more for the advantage of the witness, than that of the defendant.
Is the verbal agreement made by the parties and-the witness a defence to this action ? It is competent for the parties to a written contract, by a parol agreement made afterwards, to substitute a mode different from that contained therein, for the discharge of its obligations; and proof of the fulfilment of such parol agreement will be a defence to a suit brought upon the original contract; such will be binding as accord and satisfaction. But the mere agreement to change the written contract in this respect, when some act is to be done, to carry the new arrangement into effect, is insufficient, unless performance of the substituted agreement has been prevented by the party attempting to enforce the obligations of the written contract. The party relying upon the oral agreement, is bound to prove that it was made, and that it has been performed; or that he has done whatever was necessary for him to do, to carry it into execution. Cummings & al. v. Arnold & al. 3 Metc. 491.
In the case at bar, it was agreed by the parties and the witness, that an exchange of their several claims should be made, which if made would have been a discharge of the contract declared on; but this contract not being present at the time of the agreement, the exchange did not take place. Something farther was to be done, to make this oral agreement effectual; it was executory; until executed all former liabilities remained. The plaintiff did not engage to meet the other parties and surrender the written contract, or to do any thing in execution of *453the new agreement; he omitted the performance of no duty, which he had undertaken. Whichever of the parties to the substituted agreement wished it carried into effect, could have moved therein. Neither of them did so. The contract originally existing continued unchanged. If the defendant had desired its discharge, he could, within a reasonable time, after the agreement to vary the manner of payment, have surrendered to Jefferds his' note, obtained a discharge of the claim, which he held against the estate, of which the plaintiff was administrator, tendered it to the plaintiff, and thereupon have demanded his own contract; not having attempted this, the relation of the parties, as it was under the original contract, continued. The case cited from the 3 Term R. 163, is distinguishable from the one before us. The agreement substituted in that case was executed; one’s indebtedness was absolutely discharged, and a new debt created against another. According to the agreement of the parties
A default must be entered.