¶1 If money be paid on a special agreement, which is not performed, and cannot be, the party paying, may either sue on the contract; or in disaffirmance of it, he may bring assumpsit for money had and received to his use. The plaintiff then could have recovered in this action, when the defendant failed to convey the land. Has any thing since occurred to prevent him ? The new agreement to refer the matter to arbitration, we think, does not, It was only a mode stipulated between the parties, to ascertain the amount of the plaintiff’s demand, without going to law. It did not extinguish the plaintiff’s original righ t. That was still recognized as existing. If there had actually been an. agreement on the part of the defendant, to give a certain thing in satisfaction, it would not have barred the plaintiff, unless the thing agreed on had been delivered and accepted. An accord, without a satisfaction, is nothing. The plaintiff’s action is not destroyed by an agreement, which merely gives him another action of the same kind for .the same demand.
¶2 Fee, Cuexam. — Jiiugmeut reverse».