¶1I am of opinion that under the circumstances of this case the payment of fifty per cent in gold, in full satisfaction of the plaintiff’s claim, accompanied by the surrender and cancelment of the paper evidence of the claim, was a good accord and satisfaction. Gold was at a premium of nearly one hundred per cent, and with the gold the debtor could get paper which would as well pay his debt as gold. The creditor agrees to accept gold, and in effect to buy his own paper money or keep its equivalent in gold, as he elected. It seems to me, however, quite clear, from the evidence, that the draft was received, and not the gold. The defendant testifies so, expressly. The plaintiff, I think, does not raise an issue upon this question. He says, when the gold was placed on the table, “I said ‘what can I do with it? can’t you give me a draft ?’ he said no, but might buy me one; he said he would go and see, and came back and said he could buy a draft. I said ‘ he could buy it;’ he brought the draft in, payable to my own order. I took the draft.”
¶2The transaction was. not complete until the plaintiff accepted something; he did not accept the gold; he did accept the gold draft on a third person, which was subsequently paid in gold. I think the judgment should be affirmed, with costs.
¶3Clerke, Geo. G. Barnard and Cardozo, Justices.]