WAY v. RUSSELL. 5
vey such title as the contract requires, and that specific performance
should be denied. As the defendant insists by his answer upon a re-
turn of the money paid at the time of executing the contract, he is en- _
titled to a decree to that effect, if the facts justify it, although he has not
filed a cross-bill. Story, Eq. P1. § 394; Turner v. Marriott, L. R. 3 Eq.
744; Royzm _v. Paul, 28 Law J. Ch. (N. S.) 555; Turqucmd v. Rhodes, 37
Law J. Ch. (N. S.) 830. It therefore becomes necessary to pass denn-
itely upon the question of the validity of the title. Upon the view
taken of the title and of the contract the defendant would be entitled to
recover back his money in an action on the law side of the court. The
decree must therefore direct repayment. . A
WAY, Trustee, v. Russmtt. ,
(Ulrcuit Court, S. D. Mw York. Debember 9, 1887.)
Acconn Arm Snrsmcrrou-Aennnmnnr r·o1a—SA·rrsmc·r1oN.
W., who was the trustee of his fathers estate, finding that one R., who
was in debt to the estate on a note for $1,000, held a note of his brother for
$7,500, “agreed to accept" the $7,500 "in payment of" the $1,000 note. The
$7,500 note was supposed to be at hand, but it could not be found at the time.
The agreement was oral, and no memorandum was ever made on the subject.
R. subsequently found the $7,500 note, but never tendered it to W. until W.
brought suit on the $1,000 note, when he produced it in court, H427d, that the
agreement was an accord. but without satisfaction, the contract being not to
accept the a reement itself, rather than the performance of it, as a satisfac-
tion ofthe él,000 note, nor an agreement to the effect that the re pective
notes were immediately transferred from one owner tothe other.
At Law. V
Action by John T. Way, as trustee of the will of Thomas P. Way,
againstdefendant, Charles T. Russell, on a note for $1,000, payable to
the order of the executor of the will of said Thomas P. Way.
M. A. Kursheedt, for plaintiff.
Granville P. Hawes, for defendant.
SHIPMAN, J. This action at law was tried by the court, the parties
having entered into and signed a written stipulation waiving a trial by
jury.
1 The facts which were proved and which are found to be true are as
follows: The action was brought to recover the amount due upon a
note, dated February 20, 1874, which was signed and executed by the
defendant for value received, whereby he promised to pay, on demand,
to the order of J. Smith Rice, as executor of the last will of Thomas P.
Way, deceased, the sum of $1,000, with interest at 7 per cent. per an-
num, payable semi—annual1y. On or about July 16, 1879, the plaintiff
was duly appointed trustee, under said will and testament, in the place
and stead of said Rice, and thereafter received, among the other assets