If a creditor takes a cash order, drawn on himself, ixx satisfaction of .his debt, the debt is thex*eby paid. The effect is the same as if he Lad fh*st paid the money to the holder of the order, and the latter had then paid it back to him. Such a transaction is not strictly an accord and satisfaction, which is the acceptaxxce of some “collateral thing” in satisfaction of a debt, or claim for damages; it more nearly resembles a cash payment. The idle ceremony of first handing the money to the holder of the order, and then taking it back again, is avoided; but the effect is the same. It is a payment upon the same principle that a vast amoixnt of indebtedness is daily extinguished in the great commercial centers, through the medium of cleax’ing-houses, without a dollar of money passing. One debt is xnade to offset and pay another*, till oxxly a few small balances remain to be satisfied in cash.
Such payment may be absolute or conditional. If absolute, the debt is instantly extinguished. If conditional, the debt will be extinguished when the conditioxx is performed. If the condition is that the amount xxanxed in the order is due the drawer*, or due the one in considex*ation of whose services it is drawn, and there *188is in fact that amount then due him, performance of the condition and payment of the debt are simultaneous and instantaneous, although the fact that the amount was then due the drawer, is not ascertained till some time after; for it is the fact, and not the ascertainment of it, that constitutes performance of the condition, and makes the payment absolute.
In this case the presiding judge instructed the jury, that if Waite, one of the plaintiffs, “agreed the order should be in payment, if it was due Maloney, and it was in fact due Maloney, it would be a present credit at that amount.” We think this instruction was correct. And such being the law, the evidence of what the agreement was, was of course properly admitted.
We are also of opinion that the requested instructions, — first, that the positions taken by the defendant in his defence constituted no defence; second, that if the jury found that the payment was not actually consummated, any agreements made by Waite, which he declined to carry out, did not 'constitute any defence; third, that the facts contended for by the defendant, if true, failed to support the defence, — were all properly refused. The first and third were • obviously wrong. The second was too abstract, and not sufficiently applicable to the circumstances brought out in evidence, to be of service. It would be more likely to confuse than enlighten the jury. We are therefore of opinion that it was properly withheld.
We are also of opinion that the fourth requested instruction, as to the effect of the defendant’s taking back the order, was properly withheld. The instructions which were given upon that point were correct, and in our judgment, were all that were needed.
The evidence in the case was conflicting, as it usually is, where the parties are witnesses. If there had been no dispute between them, there would have been no occasion for a lawsuit. There being a dispute, it of course manifested itself in their testimony. It was for the jury to determine which told the truth. The defendant’s evidence, if believed, was sufficient to justify a verdict *189in his favor. The jury seem to have believed it, for they returned a verdict in his favor. We think the verdict must stand.
Motion and exceptions overruled.
Appleton, O. J., Cutting, Dickerson, Barrows and Peteks, JJ., concurred.