;~·_6 FEDERAL naroarnn. a
. of said estate, the said note, upon which interest had been theretofore
.. paid, and was thereafter paid to February 20, 1882. Said note has not
Wbeen paid, and is still in the possession of the plaintiff. On or about
_ the.······· day of August, 1883, one George E. Way, a brother ofthe
_plaintiH', and one of the heirs of Thomas P; Way, executed and deliv-
ered to the defendant his, the saidGeorge E. Way’s, promissory note,
. for the sum of $7 ,500, payable on demand, to the order of the defend-
ant, for Value received, with interest, which note has never been paid,
but is still due. In the months of September, October, and November,
1884, the plaintiff and defendant had interviews in Liverpool, England,
upon the subject of the said two notes. The plaintiff had been sum-
moned to England by a cable message from said George E. Way, asking
for relief. He was then in distressed circumstances in London, and had
been assisted by the defendant. ‘·At this time, the plaintiff verbally
— agreed that he would accept said note of $7,500 of said George E. Way
as payment in full of said, $1,000 note now in suit. The $7,500 note
was then supposed to be in Liverpool, but it could not be found. In
September, 1886, the defendant found the note among his papers at his
house in this country. It was not tendered to the plaintiff before trial,
and it has never been delivered to or accepted by him. The parties
have stipulated that it was produced, and tendered in court. No writ-
» ten agreement or memorandum was ever made on the subject.
Theburden of proof to establish the fact that said agreement or ac-
cord was made is upon the defendant, and I have found the fact upon
' his testimony. notwithstanding the testimony of the plaintiff. The in-
` terviews were of a character and accompanied with circumstances which
~ would naturally make a clear impression upon the defendant. His tes-
timony is distinct, and the story is a probable one. The interview in
regard to which the plaintiff testified was not probably the Liverpool
interview; for he called upon the defendant for interest, and was shown
the $7,500 note. The general denial that he ever agreed to accept his
brother’s note in payment of the note in suit does not lead me to doubt
the fact that such an agreement was made.
The remaining question is that of law upon the foregoing, which are
all the facts in the case. The agreement is pleaded as an accord and
satisfaction. It is not claimed that an accord executory, without an ac-
cepted performance of .the agreement, is a bar to the suit; but it is
claimed that the agreement was a mutual one to cancel the note, the ef'—
feet of which was that each was thereupon canceled. It is not denied
that such an agreement could be made, and that if, by its terms, it was
to take immediate effect and was not to be executory, the result which
the defendant claims would be accomplished, or an agreement could
» have been made by which the $1,000 note was paid by the promise of
the defendant to deliver to the plaintiff the $7,500 note. ’ But the
agreement, as testified to by the defendant, was that the plaintiff "agreed
to accept" the $7,500 note "in payment of" the note in suit. He fur-
ther says: _"The plaintiff agreed to accept the said note of George E.
Way as payment in full of said note of myself. " This agreement was