I concur in the opinion just delivered, affirming the judgment in this case. I, however, differ from a majority of the Court in the view taken of the first plea. In my opinion, it is radically bad, and as the question involved is important, I will present the reasons upon which my opinion has been formed.
The plea rests upon the validity of a parol agreement, entered into after the execution of the sealed instrument; the foundation of the suit, and before the day upon which the property mentioned in the covenant was to have been delivered. The plea would appeal; to be relied on as an accord and satisfaction, and if not good as such it is bad.
I will notice a few rules applied to sealed instruments and contracts in writing, before I test the sufficiency of the plea as a plea of accord and satisfaction. 1. A sealed instrument cannot be dissolved, except by an instrument executed with equal solemnity. ¡2.'Written agreements, whether specialties or simple contracts, and whether within or without the statute of frauds, cannot be contradicted, varied, or materially affected by parol evidence. 3. Parol evidence of fraud, or the want or failure of consideration, or of the enlargement of the time for performance, or a waiver of the performance of a written simple contract, is admissible. 4. Such evidence of fraud, and of the want or failure of consideration, by our statute, and of the enlargement of the time of performance, and waiver of the performance, also applies to sealed instruments. Erwin v. Saunders, 1 Cow. R. 249.—Hunt v. Adams, 7 Mass. R. 518.—Stackpole v. Arnold, 11 Mass. R. 27.—Fitzhugh v. Runyon, 8 Johns. R. 375.—Thompson v. Ketcham, id. 189.—Wells v. Baldwin, 18 Johns. R. 45.—Hoare et al. v. Graham, 3 Campb. R. 57.—Davey v. Prendergrass, 5 Barn. & Ald. 187.—2 Chitt. R. 336.—Baylis v. Dineley, 3 M. & S. 477.—Crane v. Newell, 2 Pick. R. 612.
The first inquiry is, Does the parol agreement set up in the plea conflict with these, or with either of these rules? By the sealed instrument, the defendant covenanted to pay to the plaintiff 90 dollars and 43 cents in merchantable hogs by the *4981st day of November, 1829. By the plea, the defendant is to pay that'sum in cattle during the summer- of 1830. These contracts are entirely different; the variance reaching not only to the subject-matter, but also to the time of performance, of substance in a contract. It cannot be contended, that the sealed contract is dissolved, or that if is not contradicted by the parol agreement relied on. Is it then avoided by fraud or the want or failure of consideration, or is an action upon it suspended by an enlargement of the time of its performance, or finally is there a waiver of the performance, or a discharge of the agreement? I think these questions must be answered in the negative. All that the plea presents is the substitution of one cause of action for another, and as the matter pleaded was executory and without consideration, it cannot constitute a valid defence.
The next inquiry is, Was the plea good as a plea of accord and satisfaction? An accord and satisfaction is a bar to an action brought on a bond, but a mere parol and executory agreement, or a mere accord without satisfaction received, is no bar. 1 Bac. Ab. 43.—Com. Dig. tit. Accord, B.—Russell v. Lytle, 6 Wend. 390.—Lynn v. Bruce, 2 H. Bl. 317.—Allen v. Harris, 1 Ld. Raym. 122.—9 Rep. 79.—Balston v. Baxter, Cro. Eliz. 304.—Rayne v. Orton, Cro. Eliz. 305-6.—3 Bl. Comm. 15. The plea alleges, that before the time designated for the delivery of the hogs, the parol agreement for the delivery of the cattle was entered into. The case of Handley v. Moorman, 4 Bibb, 1, is in point and sustains my view of the plea. In that case it was held, that in covenant for the payment of tobacco by instalments, at a particular place, a plea that the place of payment was changed by the agreement of the parties, prior to the respective instalments becoming due, was bad. -An accord and satisfaction pre-suppose a wrong done, or a liability incurred. Until a wrong be done, as in tort, &c., or a liability incurred by breach of a contract, either sealed or parol, there cannot be an accord and satisfaction. It would seem to be as correct in an action of trespass, to treat a plea alleging accord and satisfaction before the trespass was committed, as good, as in an action on a specialty, to recognise such a plea as a bar before the liability was incurred.
After breach of a covenant, the acceptance of satisfaction, all know, is a discharge of the covenant. This, however, has not *499occurred. Payne v. Barnet, 2 Marsh. R. 312, is in accordance with Handley v. Moorman, and appears to me, with the law noticed, to decide this case. It was said in Payne v. Barnet, that after breach of a covenant, a parol agreement, if executed, may be relied on as a plea of accord and satisfaction, but to render such plea good, it should aver not only accord, but complete satisfaction, but that accord and satisfaction, until after a breach, could not be pleaded.
H. P. Thornton and A. C. Griffith, for the plaintiff. J. H. Scott, for the defendant.Without adverting to the right of the covenantee in this case, to sue upon the parol agreement, a point which it seems would much strengthen my view of the plea, and which I am far from admitting, I conclude this examination with a firm belief, founded on careful investigation, that the plea is radically bad.
Per Curiam.The judgment is affirmed with costs.