Eo rule of law is better settled than that an instrument under seal cannot be discharged *544by a parol executory agreement. (Delacroix v. Bulkley, 13 Wend. 71. 2 Cowen & Hill’s Notes, 1477.)
Such an agreement may, however, be discharged by an executed parol agreement. (2 C. & H. Notes, 1477, &c.)
Such an agreement operates by way of accord and satisfaction.
These propositions may therefore be stated thus: a sealed instrument cannot be discharged by an accord, merely, but may by accord with satisfaction.
It is competent, however, for parties to a contract to discharge it by substituting in its place a new parol executory agreement, founded upon a new and sufficient consideration moving between the parties. (Billings v. Vanderbeck, 23 Barb. 546.)
In this case the plaintiff had purchased several articles of personal property, for which he had given his note, payable in November, 1852. Amongst the property thus purchased was a mare, which the defendant warranted sound. She proved to be unsound, and the plaintiff-brought an action on the warranty, before a justice. Before the trial of that action the parties entered into a new agreement, whereby, in consideration that the plaintiff would' discontinue said suit, and return to the defendant the property so purchased, the defendant promised and agreed to surrender to the plaintiff his note, and pay the costs of the action.
The plaintiff alleged that he offered to return the property at the time and place agreed upon, but the defendant did not attend to receive it; and the plaintiff sued on the new agreement. The referee found that the plaintiff was at the place agreed on for the return of the property, but the defendant was not present; that the plaintiff had voluntarily paid the note he gave for the property, and had sold the said property and kept the proceeds. There was judgment for the defendant, which the general term reversed, holding the old agreement was *545discharged by the new, and that the plaintiff was entitled to recover at least nominal damages.
In 2 Pars, on Cont. (5th ed. 681,) it is said the party holding the claim may agree to take a new promise of the other ‘ in satisfaction of it, or he may agree to receive a new undertaking when the same shall be executed as a satisfaction, * * * if the new promise be founded on a new consideration, and is clearly binding on the original promisor, this is a satisfaction of the former claim; otherwise it is no satisfaction. (Babcock v. Hawkins, 23 Vt. Rep. 561.)
In Cortwright, adm’r of John Cook, v. George Cook, (3 Barn. & Ad. 701,) the action was brought to recover for money paid by the plaintiff on an annuity bond to one Clay, signed by John Cook, as surety for the defendant. The plaintiff was compelled to pay the sum of £85, as such surety, and sued to recover it of the defendant, the principal debtor. The defendant gave in evidence an agreement entered into between the said John, George and one Sunderland Cook, whereby, in consideration of certain property transferred to the intestate, he assumed to pay the annuity in question. There was a verdict for the plaintiff, subject to the opinion of the court. The agreement was held to be a good accord, and bound the plaintiff.
In Comyn’s Dig. title “Accord” B 4, it is said: “• So an accord with mutual promises to perform is good, though the thing be not performed at the time of action; for the party has a remedy to compel the performance.”
The agreement relied on by the defendant as the substitute for the bond and mortgage, was that the defendant would pay, and the plaintiff would receive, $500 in satisfaction of the debt secured by the bond and mortgage, and that he woúld pay the money in two or three days. When this agreement was made, there was in fact $389.55 *546unpaid on the bond and mortgage, and it was payable in seven equal annual payments, from the time of making such agreement. Whatever was paid in satisfaction of the debt was paid before the defendant was obliged to pay it, and this payment wasn sufficient consideration for the agreement of the plaintiff to accept the $500 in full of the indebtedness. (Newsam v. Finch, 25 Barb. 175.)
We have, then, a new agreement to pay $500 in two or three days, in lieu of the agreement evidenced by the bond and mortgage, and this agreement supported by a new and valid consideration.
Had the money been paid, it could not be doubted but that the transaction would have amounted to an accord and satisfaction, and an action to enforce either the bond or mortgage would have been barred.
How if it be true that a new agreement, founded on a sufficient consideration, operated as an accord and satisfaction, then the plaintiff has the right to recover the amount unpaid upon the new agreement.
The question now is, did the plaintiff agree to accept the promise of the defendant to pay the $500 in two or three days, in satisfaction of his bond and mortgage, or was it the money that he agreed to accept, should the same be paid within the time named by the parties ?
If the former, then the new agreement was a satisfaction, within the cases cited. If the latter, then he was at liberty to recant at any time before actual payment.
I cannot believe that the plaintiff intended to relinquish his lien on the bond and trust to the defendant’s promise to pay the $500. (Day v. Roth, 18 N. Y. Rep. 456.)
If this is the correct view of the rights of the parties, then there was no satisfaction, and the bond and mortgage were left in full force.
It does not seem to be settled that a new agreement, founded on a new and sufficient consideration, will discharge an instrument under seal, if its effect is to dis*547charge an instrument not under seal. (Tilton v. Alcott, 16 Barb. 598. Bailey v. Howen, 3 Bing. N. C. Rep. 915. 1 Wait's L. & P. 1039.)
[Onondaga General Term, June 30, 1868.The judgment should be affirmed.
blew trial'granted.
Foster, Muffin and Morgan, Justices.]