Silvers v. Grossman

Decided September 14, 1920

California Supreme Court · decided 1920-09-14

[1] Accord and Satisfaction—Effect of Accord.—Accord alone, by which is meant a mere agreement to accept something in extinction of an existing obligation, is insufficient as a defense to an action on the original obligation and such original obligation is not actually extinguished until there has been an acceptance' of the consideration agreed upon, or, in other words, satisfaction. [2] Id.—Pleading—Unexecuted Accord — Insufficient Defense.— Neither an offer to perform nor an actual tender of performance will sustain the defense of accord and satisfaction, and a plea which avers an unexecuted accord fails to state facts sufficient to constitute a defense. [3] Id.—Terms of Accord—Giving of Promise.—The terms of the accord may provide either for the performance of an act or the giving of a promise as the consideration for the extinction of the existing obligation, and in the latter case, the giving and acceptance of the promise is the execution of the accord, and, therefore, if the promise per se is relied upon, the giving and acceptance in satisfaction of the pYe-existing obligation must be averred in the pleadings. [4] Id.—Action for Personal Injuries—Satisfaction of Claim— Pleading—Insufficiency of Special Defense.—In an action for personal injuries, a separate defense alleging an unexecuted agreement for the satisfaction of plaintiff’s claim by the payment' and acceptance of a specified sum of money, is insufficient in the absence of an averment of an agreement by the plaintiff to accept, in satisfaction, the defendant’s promise. [5] lb.—Copy of Agreement Attached to Answer — Omission of Averment of Acceptance not Cured.—In an action for damages for personal injuries, a written instrument attached to the answer and made a part thereof, reciting that in consideration of the promise of the defendant to pay fifty dollars in settlement of claim for damages the plaintiff agrees to give a release of ail claims in his favor, is ambiguous as a matter of pleading, in not sufficiently showing an acceptance of the promise, and an allegation by way of interpretation that it' was agreed that the payment of the fifty dollars was to be accepted as the consideration of the release makes the answer subject to general demurrer, as alleging nothing more than an unexecuted accord. 1. Essential requirements of an accord and satisfaction, note, 100 Am. St. Rep. 420. [6] Pleading—Matters op Substance.—In general, matters of substance must be alleged in direct terms and not by way of recital or general reference. [7] Id.—Defective Allegations-—-Reference to Recitals—Applicability of Rule.-—The rule that defective allegations of a pleading cannot be supplied by recourse to recitals in a document attached to and made a part of the pleading, unless the document is expressly referred to for the avowed purpose of aiding the defective pleading, applies only to the pleading of recitals in instruments which do not constitute - the contract upon which the action or defense is founded, or of matters of substance which are preliminary or collateral to the instrument pleaded, but in no way conflicts with the rule that a written instrument which is the foundation of a cause of action or defense may be pleaded in haee verba, rather than according to its legal effect, either by, setting forth a copy in the body of the complaint or other pleading or by attaching a copy as an exhibit and incorporating it by proper reference. [8] Id.—Written Instrument—Rule.—To enable the pleader- to adopt the rule that a written instrument may be pleaded in haee verba the instrument must show upon its face in direct' terms, and not by implication, all the facts which the pleader would have to allege under the mode of pleading by averment, and if the instrument is not free from defect or ambiguity in those particulars, some definite construction must be put upon it by averment or the pleading will be subject to general, demurrer. [9] Id.—Construction of Ambiguous Instrument—Material Averment.—Where a written instrument attached to a pleading is ambiguous and the construction put upon it by the averments of the pleading is one of which the instrument is readily susceptible, such averments cannot be disregarded as surplusage, as may be done where an instrument is unambiguous and the construction is an erroneous one, and the pleader is bound by his interpretation. [10] Appeal—Findings and Judgment—Want of Support by Pleadings—When Point Review able.—Where it appears from the record that objection to the sufficiency of a pleading to raise a particular issue was seasonably urged in the trial court, either at the trial upon the introduction of evidence, or by demurrer, the point that the findings and judgment are not supported by the pleadings is available on appeal. [11] Id.—Sothciency op' Pleading — Aider by Findings — Doctrine Inapplicable.—When the sufficiency of a pleading has been questioned by demurrer, the pleading must, upon appeal on the judgment-roll, be judged by itself alone and the doctrine of aider by findings or verdict does not apply.

Good law ✅— No negative treatment on recordhow we know

Reversed · Decided 1920-09-14

How this case has been cited

Cited by 84 later decisions — most recently July 2005 · most notably People v. Reid (1924), 24 Cal. 2d 1 - Beeler v. American Trust Co. (1944)

5 federal appellate · 79 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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OLNEY, J., Concurring.

¶1 I concur in ordering a reversal of the judgment but do not concur in directing further proceedings in the trial court. I believe judgment should be entered for the plaintiff upon the findings. Every fact necessary for that purpose is found, and the only reason for not doing so that is or can be given is the finding of the trial court upon the point of accord and satisfaction. Even if *704 further proceedings were necessary for a determination of this point, the further proceedings should certainly be confined to a determination of this issue alone. But in truth there is no occasion for retrying even this issue. The main opinion says that the finding as to accord and satisfaction was in effect that there was an executed accord in that the defendant’s promise to pay was accepted in satisfaction of the claim sued on. I do not think this construction should be put upon the finding. It reads: “That prior to the beginning of this action, to wit, on the. 17th day of February, 1916, as set out in defendcmt’s amended answer under the title ‘Third and Separate Defensethe defendant gave to plaintiff his promise in writing to pay the sum of fifty dollars in full settlement of all claims for damages plaintiff held against the defendant by reason of that certain accident sued upon and set out in plaintiff’s complaint herein, and that said plaintiff then and there accepted said promise in writing in full settlement, and satisfaction thereof.”

¶2 This finding must be construed in connection with, and in the light of, the third and separate defense, to which it refers and whose issues the finding was designed to meet. It seems to me plain enough that all that was intended by the finding was to find an accord and satisfaction “as set out in defendant’s amended answer under the title ‘Third and Separate Defense.’ ” It should be borne in mind that the court had previously overruled a demurrer to this portion of the answer holding that it stated a good defense. I do not think it occurred to counsel or to the court that there was any difference whatever between the facts found and those pleaded. The facts pleaded, as the main opinion shows, were wholly insufficient to constitute an accord and satisfaction. They, in fact, showed affirmatively that there was none. Furthermore, I think it plain enough that the defendant cannot amend his answer so as truthfully to allege an accord and satisfaction, and that he could not prove his answer if he did amend. The supposed accord and satisfaction were carried into a writing which constitutes the final memorial of the transaction. That writing is pleaded and is set out in the main opinion and by-its terms it not only does not show that the plaintiff gave a release in reliance upon the defendant’s promise or accepted the defendant’s promise to pay fifty dollars, as distinguished from the *705 actual payment of the fifty dollars, as a final settlement, but does show just the contrary. It declares in so many words that the plaintiff agrees to, that is, will, give a release in consideration of the defendant’s promise to pay fifty dollars, that is when he pays the fifty dollars. The release and the payment were plainly to be concurrent, and there was to be no release unless the money were paid. If there were to be a release, that is, a final settlement by the plaintiff, then and there, in consideration of the plaintiff’s promise alone, there was no sense in making the writing in the form in which it was made. The plaintiff would have made a release at the time instead of an agreement merely tó make one. Summing the matter up, the only reasonable interpretation of the writing is that the matter was not to be closed out between the parties and the plaintiff’s claim settled until the sum agreed .upon was actually paid; such an agreement is an accord but not a satisfaction; and finally it is not open to the defendant to show any different arrangement because to do so would be to vary the terms of the writing which is the final memorial of the arrangement and is alone competent evidence of what the arrangement was. This being the case, there is no reason for permitting the defendant further to litigate the point, and judgment should be directed against him.