John H. Swaim v. Ashley Swaim.
A right of action is not destroyed by an agreement, which only gives ' the plaintiff another action of the same kind. Hence, a parol agreement to refer a claim to arbitration, is no bar to an action upon the original claim.
Assumpsit for money had and received by the defendant, to the use of the plaintiff tried on the fall circuit of 1880, before his Honor Judge Strange.
Upon non assumpsit pleaded, the case was, that the defendant had sold the plaintiff a tract of land, and had executed a bond to make a title at a future period. The *25plaintiff gave his promissory note to secure the purchase money, and made some partial payments. Af-terwards it was discovered that: the defendant had no title to the land, and it was agreed that the bond of the-defendant, as well as the note of the plaintiff, should be cancelled, and that arbitrators should determine, whether the defendant should return to the plaintiff the money, which the latter had paid upon the note. His Honor thinking, that, upon these facts, the plaintiff was not entitled to a verdict, directed a nonsuit to be entered.
Winston, for the plaintiff, was stopped by the court.
Badger, for the defendant, declined arguing the case.
ituRPTN, Judge.'
If money be paid on a special agreement, which is not performed, and cannot be, the party paying, may either sue on the contract; or in disaffirmance of it, he may bring assumpsit for money had and received to his use. The plaintiff then could have recovered in this action, when the defendant failed to convey the land. Has any thing since occurred to prevent him ? The new agreement to refer the matter to arbitration, we think, does not, It was only a mode stipulated between the parties, to ascertain the amount of the plaintiff’s demand, without going to law. It did not extinguish the plaintiff’s original righ t. That was still recognized as existing. If there had actually been an. agreement on the part of the defendant, to give a certain thing in satisfaction, it would not have barred the plaintiff, unless the thing agreed on had been delivered and accepted. An accord, without a satisfaction, is nothing. The plaintiff’s action is not destroyed by an agreement, which merely gives him another action of the same kind for .the same demand.
Fee, Cuexam. — Jiiugmeut reverse».