
    Robert B. Bates vs. Peter Starr.
    Addison,
    
      January, 1830.
    A parol agreement between creditor anil debtor, not founded upon any new consideration, that: the former shall suspend a debt already due in money, and receive payment of the same in future professional or official services of the latter, is not binding on the creditor, although the debtor may have extinguished a part of the debt by services under the agreement, and is willing to extinguish the whole in the same manner; but an action will lie at any time to recover the balance of the debt which remains unpaid.
    Interest is recoverable on the balance of an unsettled account, tobe computed from a reasonable time after the account accrued, which in ordinary cases for work and labor is one year.
    
      Error to reverse a judgment oí Addison county court, rendered upon the report of auditors. The defendant in error brought his action on book account against the plaintiff in error, and the auditors reported, in substance, that the account of the plaintiff in that action consisted of services rendered as a justice of the peace, commencing in A. D. 1817, and ending in 
      k. Í). 1827; that in 1819 said services Imountecíto about $ 130, 'ón account of which the defendant had then paid in professional services and otherwise about $37 ; that from the latter period until the dealings] of the parties were discontinued, the defendant was also a magistrate and performed services as srich for the plaintiff j during which time the services of the plaintiff for the defendant amóurited to about $100, and thósé of the defendant for the plaintiff to about $115 ; that the parties béing sworn, the defendant testified, that immediately preceding the commencement of mutual accounts for services, as aforesaid, in 1819, it was verbally ágfeed betweén himself and the plaintiff, that they should éxcharige services as magistrates, and that neither should demand payment for his Services, except in lik'e services tó be rendered by the óthe’r, ahd that the balance theri due the plaintiff was ex1 pressly included in this agreement; that they acted tinder the agreement só lóng as the serv'icés ón either sidé were continu1 éd ; that he had never waived the contract, and that he claimed the bénefit of it in défericé tó the actióri — That the plaintiff did riot admit the existence of the agreement, but testified to his want of recollection and disbelief, for séveral reasons assigned, (as that he had supposéd he had a right tó exact money for the balance of the a'ccoúrit,and hád nevér made such a contract with arty other lawyer* though he had excháriged services as a magistrate With Several* &cc.) that such agreement was evét made. It also appeared by the report, that the parties accidentally fell intó a dispute as to thé fact of such an'agreement, whereupon the plaintiff demanded á settlement, and Soon after brought his a'ctiori.
    The auditors further reported, that they considered the par1 ties respectively entitled to full and equal credit, but that, in their opinion, the testimony of a party defendant was not sufficient tó prove a contract of this description, when opposed by testimony of the party plaintiff to the effect aforesaid. They, thérefói’é,found düé tó the plaintiff the sum of $81 23, as the balancé of the accounts* and also gave as interest thereon, from October 1, 1820* to Juries l, 1828, the sum of $37 36. The defendant filed exceptions tb the report of the auditors, as well for their decision upon the legal effect Of the testimony given, as for thé allowance of interest upon the accodnt; but the same was accepted by the county court* and final judgemerit being rendered thereon, this writ of error was brought, and the common error assigned.
    The causé was now argued by the parties in person Upon thé tWo points raised by the exceptions below • but as the'Court considered the right of recovery to rest upon á different ground, the arguments are omitted.
   Royce, J.

delivered the opinion of the court. — It seems to be ... , . , , necessary in this case to determine, whether the agreeement on which the plaintiff in error relies would constitute a defence to the action : for if it would not, the judgement of the county court ought not to be reversed, whatever our opinion might be of their decision upon the.exceptions taken. We would willingly avoid this point, as it was not taken in the argument; but as it. may at any time be assumed by the plaintiff below, we think it cannot consistently be passed over by the Court, and that we are bound to say, whether upon due proof of the agreement, with, the other facts stated in the report, the action would be legally barred or suspended. At the time when this agreement is alleged to have been made, the balance of accounts in favor of the plaintiff below was little short of $i00, being a larger sum than he finally recovered, exclusive of interest. And for, any thing appearing in the report, this was a debt then due in money, for which he was entitled to sue whenever he chose. Under such circumstances, the agreement, so long as the parties should continue to act under it, would doubtless operate to apply the balance of the new account, if in favor of the defendant, in liquidation of the former-balance in favor of the plaintiff. But the important question is, whether, if the plaintiff chose to put an end to the agreement, it would still have the effect to defeat or suspend his right of action for the old account. There are several ways in which a cause of action for a simple contract debt may be suspended-or destroyed without actual payment; as by a judgement recovered, an award made, a higher security taken, or by an accord and satisfaction. And it is not uncommon that such a disposition or appropriation is made of a subsisting debt, in the arrangement of some new undertaking or adventure, as would operate in effect like payment, and defeat an action for the debt. It is impossible however, to find in the present instance any thing but a stipulation, by which the debt due the plaintiff was to be gradually paid offir. a particular manner. And if this can operate to extinguish or suspend his right of action for the debt, it must have that effect either as an accord and satisfaction, or as a contract upon which the parties might have reciprocal remedies. It is stated upon the authority of a few old cases to which we have not had access, that mutual promises in relation to an antecedent debt may bar an action for such debt. The facts in neither of the cases are given, but one is said to have arisen under the statute of frauds.— 1 Com. D. 202. — T. Ray. 450. — 2 T. Jones, 158, 168. — On the other hand, it is laid down in all the books as a general principle, that an accord without satisfaction is not binding on the creditor,and the reason assigned is, that his agreement to accept a different satisfaction from the one to which he is entitled is without consideration, and also that accord executory is only substituting one cause of action in the room of another, which might go on to any extent.” — 2 H. Bl. 317. — There may be cases of a secondary contract executed on the part of the debt- or, or so far executed that he could not recede from it without great inconvenience, which are not intended to be affected by this decision ; like the one put by Buller, J. (2 T. R. 28,) and others which may readily be supposed. But we think the alleged promise of the creditor in this instance, to accept payment of his debt in the particular mode stated, would not be binding upon him, and that he would have a legal right at any time to decline a further execution of the contract, and recover such part of the old debt as should remain unpaid.

In computing the interest it is evident the auditors considered the principal sum reported, of $81 23, as part of the balance due in 1819, and they allowed interest upon it after one year from that time. This was consistent with the general usage and the course of decisions in this state. We have not followed the English or JVetv York practice upon this subject.

Judgement of the county court affirmed.  