majority">Wheeler, J.

A person, holding a claim upon another, may agree to receive a new promise or undertaking of his debtor, when executed, as a satisfaction. Whether it shall have, by itself, the effect of satisfying the original claim, must be determined by the construction of the new agreement. Generally, if the new promise be founded upon the new consideration, and is clearly binding on the original promisor, it is a satisfaction of the former claim ; otherwise it is not. If the new promise be executory, and be not upon a new and sufficient consideration, it is no satisfaction until it is executed, or at least until performance is tendered by the promisor, according to its terms. If it be for the performance of some collateral act, as the delivery of property, and performance be tendered and not accepted, and the promisor afterwards retains the property in his possession and disposes of it as his own, thereby affirming the property to continue in himself, unaffected by the tender, it is no satisfaction. (Bradshaw v. Davis, 12 Tex. R. 336 ; 2 Parsons on Con., 193 to 200.)

The new agreement relied on in the present case, as an accord and satisfaction, was not upon any new consideration ; it cannot be said that performance of it was ever tendered ; but if tendered, the promisor appears afterwards to have disposed of and treated the property as his own. It manifestly was no satisfaction of the plaintiff's demand.. Upon the whole evidence, it is to be deduced, that the plaintiff was desirous to obtain payment of his debt; that an opportunity was afforded of selling beeves ; and that the agreement of the plaintiff was, to receive from the defendant beeves in satisfaction of his debt, which should be such as a person, then in the neighborhood purchasing beeves, would receive from the plaintiff. The beeves were wanted by the plaintiff, it seems, for a particular purpose and disposition known to the defendant; and he was bound to furnish such as would answer the purpose intended; otherwise the plaintiff was not bound by his agreement to receive them. Of those produced by the defendant, only ten *7'(of the two hundred which were to have been delivered) were such as would answer the purpose for which they were designed. For these, the defendant received credit in the judgment ; and that was all he was legally or equitably entitled to claim.

In view of the evidence that the defendant was in the act •of making a transfer and disposition of a considerable amount of property, in a manner apparently out of the ordinary course of dealing, and considering that the ground on which the attachment was sued out, was that the defendant was about to transfer his property in fraud of his creditors, whereby the plaintiff would probably lose his debt, the Court very properly charged the jury, in reference to the defendant’s claim in re-convention for damages, that they might consider the evidence of the defendant’s reputation for solvency and ability to pay his debts, in determining upon the motive by which the plaintiff was actuated in suing out the attachment. It was also legitimate to determine whether he had sustained any and what injury in his credit and standing as a merchant, by reason of the suing out of the attachment.

There was no error in refusing the 2d, 3d and 4th charges aided by the defendant. The first of these was manifestly incorrect in point of law ; the second was abstract, and not warranted by the evidence ; and the last had been embraced substantially in the general charge. We are of opinion that the verdict was well warranted by the evidence, and that there is no error in the judgment. It is therefore affirmed.

Judgment affirmed.

Citation profile

How this case has been treated — in progress