Imágenes de páginas
PDF
EPUB

Objections to mode of offer.

Title to thing offered.

Custody of thing offered.

the creditor, with some bank of deposit within this state, of good repute, and notice thereof is given to the creditor.

This is contrary to the present law upon this subject, which makes a tender operative only so far as to stop interest. The same rule has been applied to obligations for the delivery of deeds and other instruments (Brooklyn Bank v. De Grauw, 23 Wend., 342). But this has been wisely overruled (Des Arts v. Leggett, 16 N. Y., 582). The provisions of this section have long been the law, in substance, of Louisiana and France. It seems to the commissioners to be all that creditors can reasonably ask. The common law compels a debtor to keep the money which he owes, at his own risk. This is often an inconvenience, and sometimes a positive loss to him.

$722. All objections to the mode of an offer of performance, which the creditor has an opportunity to state at the time to the person making the offer, and which could be then obviated by him,' are waived by the creditor, if not then stated.2

1

Insuperable objections are not waived by silence (Friess
v. Rider, 24 N. Y., 367; Mitchell v. Cook, 29 Barb.,
353).

Carman v. Pultz, 21 N. Y., 547; Kernochan v. Bowery
Ins. Co., 17 id., 428; Bumstead v. Dividend Mut.
Ins. Co., 12 id., 81.

S723. The title to a thing duly offered in performance of an obligation passes to the creditor, if the debtor at the time signifies his intention to that effect.

Des Arts v. Leggett, 16 N. Y., 582; Lamb w. Lathrop, 13 Wend., 95; Rix v. Strong, 1 Root, 55; see Smith v. Loomis, 7 Conn., 110. At present this rule does not apply to money, but that is because a tender does not extinguish a pecuniary debt. The change proposed by section 721 removes the ground of this distinction.

S724. The person offering a thing, other than money, by way of performance, must, if he means to treat it as belonging to the creditor, retain it as a depositary for hire,' until the creditor accepts it, or until he has given reasonable notice to the creditor that he will retain it no longer, and, if with reason

able diligence he can find a suitable depositary therefor, until he has deposited it with such person.2

'Sheldon v. Skinner, 4 Wend., 525.

* These rules seem reasonable, though they are not estab-
lished (or denied) by adjudged cases.

offer on

of obliga

$ 725. An offer of payment or other performance, Effect of duly made, though the title to the thing offered be accessories not transferred to the creditor, stops the running of tion. interest on the obligation, and has the same effect upon all its incidents as a performance thereof.

Kortright v. Cady, 21 N. Y., 343; Law v. Jackson, 9

Cow., 641; Raymond v. Bearnard, 12 Johns., 274;
Chilton v. Carrington, 15 C. B., 95, 730.

S 726. If anything is given to a creditor by way of performance, which he refuses to accept as such, he is not bound to return it without demand; but if he retains it, he is a gratuitous depositary thereof.

Kingston Bank v. Gay, 19 Barb., 460; Gordon v. Strange,
1 Exch., 477.

Creditor's of thing, refuses to

retention

which ne

accept.

CHAPTER III.

PREVENTION OF PERFORMANCE OR OFFER.

SECTION 727. What excuses performance, &c.

728, 729, 730. Effect of prevention of performance.

731. Effect of refusal to accept performance before offer.

excuses

ance, &c.

S727. The want of performance of an obligation, What or of an offer of performance, in whole or in part, or performany delay therein, is excursed by the following causes, to the extent to which they operate:1

1. When such performance or offer is prevented or delayed by the act of the creditor,2 or by the operation of law, even though there may have been a stipulation that this shall not be an excuse;

3

2. When it is prevented or delayed by an irresistible superhuman cause, or by the act of public enemies of this state or of the United States, unless the parties have expressly agreed to the contrary; or,

5

3. When the debtor is induced not to make it, by any act of the creditor intended or naturally tending to have that effect,' done at or before the time at which such performance or offer may be made, and not rescinded before that time.9

1 Where performance is simply delayed, and not made forever impossible, delay only is excused (Williams v. Vanderbilt, 29 Barb., 491; Schilizzi v. Derry, 4 El. & Bl., 873; White v. Mann, 26 Maine, 368), unless the delay is for an indefinite or unreasonable period, as in case of a blockade, which puts an end to an obligation to enter the harbor (Scott v. Libby, 2 Johns., 336; The Tutela, 6 Rob. Adm., 177; see The Isabella Jacobina, 4 Rob. Adm., 77).

'Masterton v. Mayor, &c., of Brooklyn, 7 Hill, 61; McConihe v. N. Y. & Erie R. R. Co., 20 N. Y., 495; Ellen v. Topp, 6 Exch., 424, 440.

'Jones v. Judd, 4 N. Y., 411; People v. Bartlett, 3 Hill,
570; Esposito v. Bowden, 4 El. & Bl., 963.

The rule laid down in Tompkins v. Dudley (25 N. Y.,
272), and Harmony v. Bingham (12 id., 99), is that
not even the act of God excuses the non-perform-
ance of a contract, though it relieves from an obliga-.
tion created merely by operation of law. But this
doctrine was not absolutely necessary to the decision
of those cases, nor to that of those there cited; and
the commissioners cannot see how such a principle
can be reconciled with the decision in Wolfe v. Howes
(20 N. Y., 197). The clause here inserted is consist-
ent with all that was actually decided in these cases.
and is certainly no more than just. There can be no
doubt that parties to contracts do not contemplate
such a strict liability; the only doubt is whether they
do not assume the existence of even a much more
liberal rule. See Williams v Lloyd, W. Jones, 179;
Taylor v. Caldwell, 3 Best & S., 826.

It is not necessary that the debtor should be literally

prevented by the creditor from performing. If he is induced by the creditor, in any way, to abstain from or to delay performance, that is sufficient excuse (see Young v. Hunter, 6 N. Y., 203; Carman v. Pultz, 21 id., 547; Fleming v. Gilbert, 3 Johns., 531; Farnham v. Ross, 2 Hall, 167; Higgins v. Solomon, id., 482; Southworth v. Smith, 7 Cush., 391; Gilmore v. Holt, 4 Pick., 258).

Not only a positive request of the creditor (Carman v. Pultz, 21 N. Y., 547), but any act on his part which would make performance or an offer thereof useless

(Cornwell v. Haight, 21 N. Y., 462), excuses the

want of performance.

"This is obviously just.

Skinner v. Tinker, 34 Barb., 333; Crist v. Armour, id.,
378.

9

• Id.

S728. If performance of an obligation is prevented by the creditor, the debtor is entitled to all the benefits which he would have obtained by its performance on both sides.

Masterton v. Mayor of Brooklyn, 7 Hill, 61; see Clark v.
Mayor, &c., of New York, 4 N. Y., 338.

[blocks in formation]

S 729. If a debtor is dissuaded by his creditor Id. from performance, but is not actually forbidden to perform, he may, at his option, omit to perform, and retain whatever he has received under the contract, but he is entitled to nothing more.

S730. If performance of an obligation is pre- Id. vented by any cause excusing performance, other than the act of the creditor, the debtor is entitled to a ratable proportion of the consideration to which he would have been entitled upon full performance,1 according to the benefit which the creditor receives from the actual performance."

In Clark v. Gilbert (26 N. Y., 279; reversing S. C., 32
Barb., 576), it was held that the contract price should
furnish the measure of damages in such case, and that
the party performing was not confined to a mere
reasonable compensation.

'Where full performance is prevented by the interven-
tion of law, or of a superhuman cause, the party
required to perform cannot recover the entire com-
pensation to which he would have been entitled
upon full performance, even though he is entirely
without fault (Melville v. De Wolf, 4 El. & Bl., 843).
But he is entitled to a compensation according to the
proportion of time or labor expended by him, sub-
ject to the rule of the text (Wolfe v. Howes, 20
N. Y., 197). Thus, if an author should die, leaving
any quantity of undigested manuscript, prepared
under a contract with a publisher, nothing could be
recovered by his representatives. (Id.)

[blocks in formation]

S 731. A refusal by a creditor to accept performance, made before an offer thereof, is equivalent to an offer and refusal,' unless, before performance is actually due, he gives notice to the debtor of his willingness to accept it.2

[blocks in formation]

Accord what.

Effect of accord.

Satisfac tion, what.

CHAPTER IV.

ACCORD AND SATISFACTION.

SECTION 732. Accord, what.

733. Effect of accord.

734. Satisfaction, what.

735. Accord of liquidated debt.

$732. An accord is an agreement to accept, in extinction of an obligation, something to which the person agreeing to accept is not otherwise entitled.

Williams v. London Com. Exch. Co., 10 Exch., 569; Scott v. Hunt, 2 How. Pr., 58; Seymour v. Minturn, 17 Johns., 169; Keeler v. Neal, 2 Watts, 424.

S733. Though the parties to an accord are bound to execute it, yet it does not extinguish the obligation until it is fully executed.3

[blocks in formation]
[ocr errors]

390; Tilton v. Alcott, 16 Barb., 598; Mitchell v. Hawley, 4 Denio, 417.

$734. Acceptance, by the creditor, of the consideration of an accord, extinguishes the obligation, and is called satisfaction.

Hall v. Flockton, 16 Q. B., 1039; Jones v. Sawkins, 5 C. B., 142. Though an accord aud satisfaction is not at common law a defense to a claim founded upon a record or specialty (Mitchell v. Hawley, 4 Den., 414), the commissioners do not think it wise to retain this distinction.

« AnteriorContinuar »