CHAPTER II. OFFER OF PERFORMANCE. SECTION 706. Obligation extinguished by offer of performance. 707. Offer of partial performance. 708. By whom to be made. 709. To whom to be made. 710. Where offer may be made. 711. When offer must be made. 712. Compensation after delay in performance. 713. Conditional offer. 714. Ability and willingness, essential. 715. Production of thing to be delivered, not necessary. 716. Thing offered, to be kept separate. 717. Performance of condition precedent. 718. Written receipts. 719. Extinction of pecuniary obligation. 720. Objections to mode of offer. 721. Title to thing offered. 722. Custody of thing offered. 723. Effect of offer on accessories of obligation. 724. Creditor's retention of thing which he refuses to accept. S 706. An obligation is extinguished by an offer of performance, made in conformity to the rules herein prescribed, and with intent to extinguish the obligation. This is the present law with respect to all obligations other $707. An offer of partial performance is of no effect. offer of Dixon v. Clark, 5 C. B., 365. partial performance. S708. An offer of performance must be made by By whom to the debtor,' or by some person on his behalf and with his assent.2 See Muller v. Eno, 14 N. Y., 597. Read v. Goldring, 2 M. & Selw., 86; see Belshaw be made. To whom to be made. Where offer may be made. S709. An offer of performance must be made to the creditor, or to any one of two or more joint creditors, or to a person authorized by one or more of them to receive3 or collect what is due under the obligation, if such creditor or authorized person is present at the place where the offer may be made; and if not, then to a notary public.5 4 Haldane v. Johnson, 8 Exch., 689. Carman v. Pultz, 21 N. Y., 547; Douglas v. Patrick, 3 T. R., 683; Dawson v. Ewing, 6 Serg. & R., 371. Kirton v. Braithwaite, 1 M. & W., 310; Goodland v. Blewith, 1 Camp., 477. The agent must have authority to receive payment in some shape (Hargous v. Lahens, 3 Sandf., 213; Bingham v. Allport, 1 Nev. & M., 398; see Offley v. Clay, 2 M. & G., 172; Kirton v. Braithwaite, 1 M. & W., 310). Tender may be made to an agent instructed to collect by process of law (Crozer v. Pilling, 4 B. & C., 26), even though forbidden to receive payment from the -debtor (Hatch v. Hale, 15 Q. B., 10). This provision is new. It is intended to provide a mode of offer, fair alike to the debtor and to the creditor. A creditor might be absent from the state, when the debt became due, and have no agent here. If, under such circumstances, the debtor could stop the running of interest by a formal offer, addressed to no particular person, it is plain that great injustice might be done. S710. In the absence of an express provision to the contrary, an offer of performance may be made, ' at the option of the debtor: 1. At any place appointed by the creditor;' or, 2. Wherever the person, to whom the offer ought to be made, can be found; or, 3. If such person cannot, with reasonable diligence, be found within this state, and within a reasonable distance from his residence or place of business, or if he evades the debtor," then at his residence, or place of business,' if the same can, with reasonable diligence, be found within the state; or, 4. If this cannot be done, then at any place within this state. Franchot v Leach, 5 Cow., 506; Robinson v. Bachelder 4 N. H., 40; Wyman v. Winslow, 2 Fairf., 398. S711. Where an obligation fixes a time for its performance, an offer of performance must be made at that time,' within reasonable hours,' and not before3 nor afterwards. 4 1 See Dixon v. Clark, 5 C. B., 365, 378. Startup v. Macdonald, 2 M. & G., 395. Mitchell v. Cook, 29 Barb., 343. In Maryland, however, Livingston v. Harrison, 2 E. D. Smith, 197; Poole v. When offer made. must be S712. Where an obligation does not fix the time a for its performance, an offer of performance may be made at any time, before the debtor, upon a reasonable demand, has refused to perform. See Jones v. Gibbons, 8 Exch., 922. Compensa delay in tion after perform $713. Where delay in performance is capable of exact and entire compensation, and time has not been expressly declared to be of the essence of the obliga- ance. tion,' an offer of performance, accompanied with an offer of such compensation, may be made at any time after it is due,' but without prejudice to any rights acquired by the creditor or by any other person in the meantime. 2 This provision, which is new, is intended to obviate the Offer to be made in good faith. Conditional offer. Ability and willing avoid costs. Undoubtedly it is not allowed by the common law (Poole v. Tumbridge, 2 M. & W., 223; Hume v. Peploe, 8 East, 168); but the judges acknowledged the hardship of the law on this point. In Connecticut, the rule here proposed has become law through usage (Tracy v. Strong, 2 Conn., 659). S714. An offer of performance must be made in good faith, and in such manner as is most likely, under the circumstances, to benefit the creditor. Good faith is manifestly essential. S715. An offer of performance must be free from any conditions' which the creditor is not bound on his part to perform.2 1 Brooklyn Bank v. Degrauw, 23 Wend., 342; Wood v. Hitchcock, 20 id., 47; Eddy v. O'Hara, 14 id., 221. An offer conditioned upon a receipt in full (Loring v. Cooke, 3 Pick., 48; Thayer v. Brackett, 12 Mass., 450; Finch v. Miller, 5 C. B., 428), or a receipt of any kind (Laing v. Meader, 1 Carr. & P., 257; Griffith v. Hodges, id., 419; Ryder v. Townsend, 7 Dowl. & Ryl., 119; see Wood v. Hitchcock, 20 Wend., 47) being given; or upon the amount tendered being accepted in full of all or any demands (Wood v. Hitchcock, 20 Wend., 47; Strong v. Harvey, 3 Bing., 304) is bad at common law. It is proposed, however, to sanction a demand for a receipt. Bevans v. Rees, 5 M. & W., 306. Thus an offer of more than is due, conditioned upon the creditor taking out of it the amount which he claims to be due, is good (Ib.; Dean v. James, 4 B. & Ad., 546; see Hubbard v. Chenango Bank, 8 Cow., 100), if the creditor is not required to make change, for that he is not bound to do (Ib.; Betterbee v. Davis, 3 Camp., 71). Where the creditor is bound by law to give a release upon payment, an offer conditioned upon his doing so is good (Saunders v. Frost, 5 Pick., 260, 270). So à party to a negotiable instrument may require its surrender upon payment (Wilder v. Seelye, 8 Barb., 408), unless the holder has other claims upon it (Hargous v. Lahens, 3 Sandf., 213). S 716. An offer of performance is of no effect, if ness essen the person making it is not able and willing to per tial. form according to the offer. All the precedents assume this to be essential. Ability, $717. The thing to be delivered, if any, need not in any case be actually produced, upon an offer of performance, unless the offer is accepted. This is an innovation upon the common law, as far as offered to separate. S718. A thing, when offered by way of perform- Thing ance, must not be mixed with other things from be kept which it cannot be separated immediately and without difficulty. Hamilton v. Ganyard, 34 Barb., 204; Betterbee v. Davis, 3 Camp., 71; Bates v. Churchill, 32 Maine, 31; Lebal- ance of S719. When a debtor is entitled to the perform- Perform ance of a condition precedent to, or concurrent with, condition performance on his part, he may make his offer to depend upon the due performance of such condition. See 681, and notes. precedent. receipt, $720. A debtor has a right to require from his Written creditor a written receipt for any property delivered in performance of his obligation. This provision is new (see note to § 715). Its propriety $ 721. An obligation for the payment of money is extinguished by a due offer of payment, if the amount is immediately deposited in the name of |