The opinion of the Court was delivered by
Williams, J.The question in this case is, whether the verbal agreement of the plaintiff’to accept an order on Cady for ten dollars, should be in full of his claim on the note declared on, which was for a larger sum ?
To give it this effect, it must be considered either as an accord and satisfaction, or in the nature of a release. The first enquiry is, can the agreement and the subsequent proceedings be considered as an accord and satisfaction, as the defendant contends ? Upon this point there can be no doubt. The very terms of the agreement exclude'the idea of the order being received in satisfaction. A satisfaction received, or an accord and satisfaction executed, would be'a. .discharge of the demand itself, and would equally avail eiílréjt of the signers of the note; whereas no such result was contemplated or intended ; moreover, it was expressly agreed that it sbouldmot so operate.
Without enquiring, therefore, whether the agreement has been executed, or whether the order has been accepted and paid accor-: ding to the terms of the agreement, or whether, if the payment and acceptance was prevented by the misconduct of the plaintiff, *574as to him, it should be considered the same as if accepted and paid, or whether a-verbal agreement to accept a less sum can, in any case, be insisted on asa satisfaction even though it has been received in pursuance of such agreement. We decide, without 1 ° , any hesitation, that here was no accord and satisfaction, which can avail the defendant, as a discharge of the note. Neither can this agreement bo considered in the nature of a release ; as an agreement, not to sue it, was void for want of consideration. A covenant, not to sue, may, in some cases, operate as a release ; but -a covenant is supposed to be founded on a consideration.
Woodbridge & Bradley, for plaintiff. Doolittle & Briggs, for defendant.On both grounds taken by the defendant, we think he must fail, and that the judgement of the county court was correct. This •question was decided in a case very similar to the one under con-sideration, Harrison vs. Close and Wilcox, (2 Johns. 448.) It was held in that case, that a payment by one of two joint prom-issors of a part of a note, and an agreement by the payee, that in consideration of such payment he would not call on him for the payment of the note, but would collect the residue of the other promissor, was no bar to a suit against both on the note, but that the agreement was a nudum pactum. This same principle was decided in the case of Seely and others vs. Spencer, (3 Vt. Rep. 338,) a case very analogous to the present.
The judgement of the county court, must, therefore, be affirmed.