United States v. Clarke et al.
remain in full force, and only provided that it might be satisfied, paid, and discharged by the delivery of a sufficient number of rations of subsistence. When delivered, they should operate to liquidate and discharge it. That was the object, and nothing beyond it.
The averment in the pleas, that the latter contract was received by the plaintiffs in full discharge and satisfaction of the former contract, cannot be regarded, because it is inconsistent with the terms and provisions of the contract itself, as. well as the clear intention of the parties.
It may be further remarked, that the amount of rations to be furnished by the defendant Clarke is left wholly uncertain and entirely dependent upon the number of Seminole Indians that might emigrate during the year. It rested on that contingency.
It seems to me that it can admit of no serious doubt, that a contract thus uncertain and unperformed in any part, cannot be legally pleaded as an accord and satisfaction of a previous liability. 1 Com. Dig., Accord (b. 3), 201. The pleas are not sufficient in law to bar the action, and the demurrer to them must be sustained.
The seventh and eighth pleas having been amended by leave of the court, the district attorney again demurred, for this, among other causes, that "the pleas did not show that the accord had been executed, without which it could not be a bar to the action."
OPINION OF THE COURT.—This action is in substance for the recovery of damages for a breach of covenant, and is governed by the rules applicable to that action.
To an action of covenant, the defendant may set up various defences in bar of the action. He may deny that he ever made the covenant, by putting in the plea of non est factum; or he may plead a fraud practised upon him in its execution, and so avoid it. He may plead that he has performed the covenant stipulated on his part to be performed, or that he is discharged from performance by the failure of the plaintiff to perform a condition precedent. He may plead an accord, which Black-
