[1] Accord and Satisfaction—Effect of Accord.—Accord alone, by which is meant a mere agreement to accept something in extinction of an existing obligation, is insufficient as a defense to an action on the original obligation and such original obligation is not actually extinguished until there has been an acceptance' of the consideration agreed upon, or, in other words, satisfaction.

[2] Id.—Pleading—Unexecuted Accord — Insufficient Defense.— Neither an offer to perform nor an actual tender of performance will sustain the defense of accord and satisfaction, and a plea which avers an unexecuted accord fails to state facts sufficient to constitute a defense.

[3] Id.—Terms of Accord—Giving of Promise.—The terms of the accord may provide either for the performance of an act or the giving of a promise as the consideration for the extinction of the existing obligation, and in the latter case, the giving and acceptance of the promise is the execution of the accord, and, therefore, if the promise per se is relied upon, the giving and acceptance in satisfaction of the pYe-existing obligation must be averred in the pleadings.

[4] Id.—Action for Personal Injuries—Satisfaction of Claim— Pleading—Insufficiency of Special Defense.—In an action for personal injuries, a separate defense alleging an unexecuted agreement for the satisfaction of plaintiff’s claim by the payment' and acceptance of a specified sum of money, is insufficient in the absence of an averment of an agreement by the plaintiff to accept, in satisfaction, the defendant’s promise.

[5] lb.—Copy of Agreement Attached to Answer — Omission of Averment of Acceptance not Cured.—In an action for damages for personal injuries, a written instrument attached to the answer and made a part thereof, reciting that in consideration of the promise of the defendant to pay fifty dollars in settlement of claim for damages the plaintiff agrees to give a release of ail claims in his favor, is ambiguous as a matter of pleading, in not sufficiently showing an acceptance of the promise, and an allegation by way of interpretation that it' was agreed that the payment of the fifty dollars was to be accepted as the consideration of the release makes the answer subject to general demurrer, as alleging nothing more than an unexecuted accord.

1. Essential requirements of an accord and satisfaction, note, 100 Am. St. Rep. 420.

[6] Pleading—Matters op Substance.—In general, matters of substance must be alleged in direct terms and not by way of recital or general reference.

[7] Id.—Defective Allegations-—-Reference to Recitals—Applicability of Rule.-—The rule that defective allegations of a pleading cannot be supplied by recourse to recitals in a document attached to and made a part of the pleading, unless the document is expressly referred to for the avowed purpose of aiding the defective pleading, applies only to the pleading of recitals in instruments which do not constitute - the contract upon which the action or defense is founded, or of matters of substance which are preliminary or collateral to the instrument pleaded, but in no way conflicts with the rule that a written instrument which is the foundation of a cause of action or defense may be pleaded in haee verba, rather than according to its legal effect, either by, setting forth a copy in the body of the complaint or other pleading or by attaching a copy as an exhibit and incorporating it by proper reference.

[8] Id.—Written Instrument—Rule.—To enable the pleader- to adopt the rule that a written instrument may be pleaded in haee verba the instrument must show upon its face in direct' terms, and not by implication, all the facts which the pleader would have to allege under the mode of pleading by averment, and if the instrument is not free from defect or ambiguity in those particulars, some definite construction must be put upon it by averment or the pleading will be subject to general, demurrer.

[9] Id.—Construction of Ambiguous Instrument—Material Averment.—Where a written instrument attached to a pleading is ambiguous and the construction put upon it by the averments of the pleading is one of which the instrument is readily susceptible, such averments cannot be disregarded as surplusage, as may be done where an instrument is unambiguous and the construction is an erroneous one, and the pleader is bound by his interpretation.

[10] Appeal—Findings and Judgment—Want of Support by Pleadings—When Point Review able.—Where it appears from the record that objection to the sufficiency of a pleading to raise a particular issue was seasonably urged in the trial court, either at the trial upon the introduction of evidence, or by demurrer, the point that the findings and judgment are not supported by the pleadings is available on appeal.

[11] Id.—Sothciency op' Pleading — Aider by Findings — Doctrine Inapplicable.—When the sufficiency of a pleading has been questioned by demurrer, the pleading must, upon appeal on the judgment-roll, be judged by itself alone and the doctrine of aider by findings or verdict does not apply.