CHAPTER XXIV. DEFENSES-SPECIAL PLEAS. § 477. Defense of accord and satisfaction. The defense of accord and satisfaction must be specially pleaded. And evidence of the discharge of the debt sued on, pending the action, is admissible only under this plea.3 The plaintiff on an execution may receive promissory notes by a special agreement, as an absolute payment of the same, but the agreement must be proved by testimony other than the sheriff's certificate.* An accord and satisfaction after issue joined must be pleaded specially as happening since the last continuance." A plea of accord and satisfaction must aver the payment and receipt in satisfaction." A mere readiness to perform the accord, or a tender of performance, or even part performance and readiness to perform the rest, is not enough. A plea which alleges that the defendant. executed to the plaintiff a deed of certain property, which was to be absolute in case the note sued on was not paid by a certain day, without alleging that the deed was accepted as a satisfaction, is bad.8 § 478. The same and when allowed.-A satisfaction may result from the acceptance of another as debtor, or from action for part of an entire demand;10 or a payment of a less sum where the amount is disputed, but not otherwise.11 An agree 1 For a form in the defense of accord and satisfaction, see 2 Greenl. Ev. 28, note, and authorities there cited. 2 Piercy v. Sabin, 10 Cal. 30, 70 Am. Dec. 692; Jacobs v. Day, 5 Misc. 410, 25 N. Y. Supp. 763; Berdell v. Bissell, 6 Colo. 162; Coles v. Soulsby, 21 Cal. 47; Sweet v. Burdett, 40 Cal. 97; Young v. Jones, 64 Me. 563, 18 Am. Rep. 279; Watson v. Elliott, 57 N. H. 511; Ellis v. Bitzer, 2 Ohio, 89, 15 Am. Dec. 534. 3 Jessup v. King, Cal. 331. Mitchell v. Hockett, 25 Cal. 542, 85 Am. Dec. 151. Good v. Davis, Hempst. 16, Fed. Cas. No. 5530a. 6 Maze v. Miller, 1 Wash. C. C. 328, Fed. Cas. No. 9362; United States v. Clarke, Hempst. 315, Fed. Cas. No. 14812. See Cal. Civ. Code, §§ 1521-1524. 7 Hearn v. Kiehl, 38 Pa. St. 147, 80 Am. Dec. 472. 8 Shaw v. Burton, 5 Mo. 478. 9 Van Etten v. Troudden, 1 Hun, 432. 10 O'Beirne v. Lloyd, 43 N. Y. 248. 11 Williams v. Irving, 47 How. Pr. 440; Maack v. Schneider, 51 Mo. App. 92; Truax v. Miller, 48 Minn. ment to receive some other thing instead of that specified in the contract, when executed, is good;12 but part payment and tender is an unexecuted accord, and not a satisfaction.13 This plea is allowed to be put in after the defendant has already pleaded, where some new matter of defense arises after issue joined, such as payment, a release by the plaintiff, the discharge of the defendant under an insolvent or bankrupt law, and the like.1 A plea of accord and satisfaction founded upon services should aver that the services were accepted in satisfaction of the plaintiff's demand; otherwise, the plea is bad.15 § 479. Another action pending-Foreign suits. It would seem that under the decisions of the New York courts a discontinuance of the other action, even after the answer, avoids this defense.16 That a prior suit in personam, between the same parties and for the same cause of action was pending in another state, at the time of bringing the action, is not a defense;17 but the pendency of a suit between the same parties and respecting the same subject-matter in another state may be pleaded in abatement in the courts of the United States,18 or in a state court, on account of pending suit in the United States court, where there is concurrent jurisdiction.19 Where an appearance in a foreign attachment suit in another state is after the service of a writ in an action between the same parties in this state, the pendency of the foreign suit cannot be pleaded in bar or abatement of the action here.20 § 480. The same Identity of cause and parties.-In New York, it is not enough to allege service of process for the same cause, without showing a declaration or complaint for the 62, 50 N. W. 935; Sicotte v. Barber, 15 Johnson v. Hunt, 81 Ky. 321. Pac. 318; Dyer v. Scalmanini, 69 Cal. 639, 11 Pac. 327; Hixon v. Schooley, 26 N. J. L. 461. 17 Seevers v. Clements, 28 Md. 426. See Douglass v. Insurance Co., 138 N. Y. 209, 34 Am. St. Rep. 448, note, 33 N. E. 938, 20 L. R. A. 118. 18 Ex parte Balch, 3 McLean, 221, Fed. Cas. No. 790. 19 State v. Tallman, 29 Wash. 411, 69 Pac. 1115. 20 Wilson v. Mechanies' Bank, 45 Pa. St. 488. same cause.21 In an action to recover land, an answer of another action pending for the same cause must show, that the same title, the same injury, and the same subject-matter are in controversy in both actions.22 A former suit in foreclosure which could not rightfully be maintained while the plaintiff retained title in fee to the premises, cannot be set up to abate an action between the same parties for the possession of the premises.23 If the second is brought on a title acquired after the commencement of the first, the defense will not avail.24 To sustain this defense, it must appear that the two actions are for the same identical cause; but where the plaintiff seeks to split an entire demand, and brings a suit for a part, and then another suit for the residue, the pendency of the former may be pleaded in abatement or bar of the second action,25 and may be pleaded though the plaintiff did not ask for the same relief in the former suit, if he was in fact entitled to the relief.26 The defense of a prior lis pendens is available only where the plaintiff, at least, in both actions is the same.27 It is enough to state merely that the action was between the same parties. Describing the parties is unnecessary.28 If defendant is the suc cessor in interest to the defendant in the former suit, the parties defendant are the same.29 In a plea in abatement that a prior suit is pending, the absence of an affidavit verifying allegations in the plea that parties and cause of action are the same is fatal. The pendency of an action for an accounting may be pleaded in abatement of a subsequent action between the same parties founded on one or more items involved in a prior action.31 § 481. The same-What must be shown.-A plea to abate an action by reason of another action pending is not good unless it shows that the pending action was brought for the same cause as the one in which the plea is interposed. 32 To support a 21 Gardner v. Clark, 21 N. Y. 399. 22 Larco v. Clements, 36 Cal. 132. 23 Howard v. Hewitt, 139 Cal. 614, 73 Pac. 414. 24 Vance v. Olinger, 27 Cal. 358. 25 Bendernagle v. Cocks, 19 Wend. 207, 32 Am. Dec. 448. 26 Wetzstein v. Boston & M. etc. Min. Co., 28 Mont. 451, 72 Pac. 865. 27 O'Connor v. Blake, 29 Cal. 312; Walsworth v. Johnson, 41 Cal. 61. 28 Ward v. Dewey, 12 How. Pr. 193. 29 Wetzstein v. Boston & M. etc. Min. Co., 28 Mont. 451, 72 Pac. 865. 30 Trenton Bk. v. Wallace, 9 N. J. L. 83; White v. Whitman, 1 Curt. 494, Fed. Cas. No. 17561. 31 Coubrough v. Adams, 70 Cal. 374, 11 Pac. 634. 32 Calaveras County v. Brockway, 30 Cal. 325. See Putnam v. Lyon, 3 plea in abatement founded on the pendency of a prior action, it is necessary to show that process was issued in such action.33 A plea which sets up, in bar of an action upon a contract, that property was attached in a previous suit to answer for the same demand, and was lost, should show how the loss occurred.34 A plea in abatement setting up pendency of a prior suit must show that the other court has jurisdiction of the action there pending.35 It has been held in New York that the answer should show where the action is pending. But pendency of another action in a court of another state, or in a court of the United States, is not generally a good defense.36 § 482. Equitable defense, and how pleaded. An equitable defense which may be interposed to an action at law, and which must be tried by the court before proceeding to a trial of the issues of law, is such a defense as is properly an equitable right of action existing in behalf of the defendant which he might have asserted in an independent suit brought by him against the plaintiff for the purpose of enforcing such right, but which he can rely upon as a defense in an action involving the same subject-matter brought against him by the plaintiff. The party relying upon such equitable defense must, however, plead it with the same fullness and particularity as is required in cases involving like subjects of inquiry in equity, and his answer, being in the nature of a bill in equity, must contain all the essential averments of such a bill.37 § 483. Answer-Variance.-An answer alleging a joint loan to both the plaintiffs is not sustained by proof of a loan to one of them individually.38 33 Primm v. Gray, 10 Cal. 522. See, also, People v De La Guerra, 24 Cal. 73. 34 Starr v. Moore, 3 McLean, 354, Fed. Cas. No. 13315. 35 White v. Whitman, 1 Curt. 494, Fed. Cas. No. 17561; Ex parte Balch, 3 McLean, 221, Fed. Cas. No. 790. 36 Cook v. Litchfield, 5 Sandf. 330; Burrows v. Miller, 5 How. Pr. 51. See Republic of Mexico v. Arrangois, 1 Abb. Pr. 437; People v. The Sheriff etc., 1 Park. Cr. 659; Hecker v. Mitchell, 5 Abb. Pr. 453; Bowne v. Joy, 9 Johns. 221; Walsh v. Durkin, 12 Johns. 99; O'Reilly v. New York R. R. Co., 16 R. I. 388, 17 Atl. 171, 19 Atl. 244. 87 Swasey v. Adair, 88 Cal. 179, 25 Pac. 1119; Bacon v. Green, 36 Fla. 325, 18 South. 870. 38 York v. Fortenbury, 15 Colo. 129, 25 Pac. 163. § 484. Another action-When defense does and does not lie. A plea in abatement may be interposed to the entire action on the ground that another suit is pending for the same cause of action if the copy of the record be annexed. Still the proofs must show that the first cause of action is for the same matter sued for in the second suit.39 It would also appear that proceedings other than an action-e. g. by petition-may be pleaded as a defense in the same way.40 Where defendant pleads another suit pending, and it appears no summons was ever issued on the complaint, and there was no voluntary appearance on the part of the defendant, it was held that there was no suit pending," and likewise where summons and complaint were served but never filed, the former suit was not pending.42 So where the complaint is so defective that a judgment entered thereon would be a nullity. So where the other suit pending was for only a part of the same matter sued for in the second suit.** The pen dency of an action to quiet title to land will not abate a sub sequent action between the same parties to recover possession of the same land in which the same facts are litigated.45 plaintiff, at least, must be the same in both cases.46 43 The A plea in abatement on the ground of the pendency of a former action will not be sustained, unless it appears that the plaintiff in the former action is the same as in the action in whch the plea is offered, and that the cause of action in both is founded upon one entire contract, or upon one single or continuous tort.47 Where two joint tort-feasors are sued separately for the same tort, the pendency of the suit against one cannot be pleaded in abatement. of the suit against the other.48 A plea in abatement interposed to two causes of action, good as to one cause and bad as to the other, is demurrable.49 39 Thompson v. Lyons, 14 Cal. 42; People v. De La Guerra, 24 Cal. 73. 40 See Groshon v. Lyon, 16 Barb. 461; Ogden v. Bodie, 2 Duer, 611. 41 Weaver v. Conger, 10 Cal. 233; Primm v. Gray, 10 Cal. 522. 42 Harris v. Fidalgo Mill Co., 38 Wash. 169, 80 Pac. 289. 43 Reynolds v. Harris, 9 Cal. 338. 44 Thompson v. Lyon, 14 Cal. 39. 45 Bolton v. Landers, 27 Cal. 106. 46 O'Connor v. Blake, 29 Cal. 314; Walsworth v. Johnson, 41 Cal. 61. 47 Lindsay v. Stewart, 72 Cal. 540, 14 Pac. 516. See Hollister v. Stewart, 111 N. Y. 644, 19 N. E. 782; Phelps v. Winona etc. R R Co., 37 Minn. 485, 5 Am. St. Rep. 867, 35 N. W. 273; Bryan v. Scholl, 109 Ind. 367, 10 N. E. 107. 48 State v. Boyce, 72 Md. 140, 20 Am. St. Rep. 458, 19 Atl. 366, 7 L. R. A. 272; Livingston v. Bishop, 1 Johns. 290, 3 Am. Dec. 330. 49 Pappe v. Trout, 3 Okla. 260, 41 Pac. 397. |