¶1The opinion of the Court was pronounced by
¶2The plaintiff’s counsel have treated this defence as an instance of accord without satisfaction. If they are correct in this, there is no difficulty in the case.
¶3There is no doubt that an accord without satisfaction is no bar to the action, and that an accord with tender of satisfaction unaccepted, is no better. The main question in the case however, is, whether this is to be regarded as a case of accord merely, or as an instance of a new and superior contract, superceding and extinguishing the old one.
¶4Great industry has been exerted in examining and presenting the authorities which really do, or are supposed to *420bear upon the subject; but it is not necessary to comtneni particularly upon the cases cited. The reason of the sale “upon which the plaintiff relies is obvious. An accord without satisfaction is no bar, simply because there is no consideration and no mutuality to support it; because the creditor has no means of obtaining satisfaction fey enfor»1 cing it, and of course derives no satisfation directly noi in*1' directly from it. The authorities all put the subject upon' this ground. The want of consideration not only appears,. But is assigned as the ground of decision.
¶5Much stress has been laid upon the necessity of mutuality in a contract. This term is often used in the books in connexion with ‘ consideration.’ It is difficult, however, to find any distinction in their import. It would be-difficult to find any case, where a consideration exists in. which there is no mutuality, or a case of mutual legal obligation without a consideration. The terms when applied to this subject are synonymous; the mutuality sometimes arising from a consideration, as in the case of a consideration execuí ed, and the consideration sometimes consisting of mutual obligation, as in case of a contract on both sides executory. If by mutuality is intended a mutual prospective obligation, or mutual remedy, the law does not, in all cases, require it as essential to a contract; although in many cases, like the one in question, the consideration depends upon this mutual obligation — the contract being purely executory.
¶6It is to be observed, that the contract set forth in the defendant’s plea is a contract under seal. This circumstance supercedes all enquiry into the consideration: The seal imports one. It is necessary neither to allege nor prove it. Moreover, if mutuality be essential, it is sufficient that both parties have bound themselves in express terms under seal — the one to deliver, and the other to receive the horse > and no reason can be assigned, why the contract could not be enforced by either.
¶7It will be seen therefore, that in the first place, there is a consideration, the seal importing one, and the mutual liability of the parties upon their covenant constituting of itself a consideration; in the second place, there is a mutuality — -both parties being absolutely and equally *421bound. And lastly, that the plaintiff has a full and ample remedy upon the contract pleaded in bar.
¶8This brings the case within the rule laid down in Plow-den 5, and 3 John. Cas. 342, that, whenever the new agreement furnishes an adequate remedy to the party, it may be pleaded in bar of the former. Indeed, the cases cited by the plaintiff, go expressly upon the ground that the creditor could not enforce the accord, and of course it could be no bar to his action.
¶9The result is, that neither the sale relied on by the plaintiff, nor the cases cited by him, are applicable here; as neither the reason of the one, nor the grounds upon which the others Were decided, exist in this case.
¶10It may be added, that the term ‘ accord,’ in its strict technical sense, has no applicability to an instrument under seal. It is used to denote an agreement without consideration, — the consent of two parties not ripened into a contract. It is never used with reference to a contract tike the one in question; nor can it be, with propriety. Further it is not to be denied, that a tender of the horse by the defendant was all that could be required of him; and that such a tender, if the contract is binding, is equivalent to performance.
¶11It is argued however, that the defendant’s remedy is by suit on his contract to recover damages for the plaintiff’s refusal to receive the horse. This argument concedes the whole case; for if either party can sustain an action on the contract, doubtless both can. But suppose the defendant adopts this remedy; what should be his rule of damages? The agreement of the plaintiff is to receive the horse ill full satisfaction of his notes. The rule of damages would be the amount of the notes. — Ho would be entitled to be placed in the same situation as if the horse had been received — See Ferris vs. Barlow, 2 Aik. 106. This being the case, he would be entitled, to prevent circuity of action, to plead the agreement in bar. Some stress is laid upon the stipulation, that if the horse were not delivered, the suit should go on. This stipulation merely furnished the plaintiff an additional security for the performance of the contract — giving him an election if not performed, to sue upon it, or prosecute his suit. The stipulation is mere-*422]y collateral to the contract. But it is difficult to attach J any importance to this stipulation, since the contract was performed. It certainly affords no reason why the defendant, having performed, is not entitled to the full benefit of the contract. Indeed, it of itself furnishes sufficient evidence of the intention of the parties, that if the contract were performed, the suit was not to proceed.
¶12Finally, the contract set forth in the plea, was a substitute for the original one, and operated to extinguish it, except in a certain contingency. The intention of the parties, that if performed, it should satisfy the cause of action, is apparent. The defendant has done all in his power to .perform, and, unless the plaintiff can make out, that notwithstanding his covenant, he was .at liberty to treat the contract as a nullity, and refuse to receive the horse, he must submit to the result, that it is in the eye of the law performed, and his debt consequently satisfied. * Judgement of the County Court reversed, and
¶13Judgement for defendant.