SEC. 1486. An offer of partial performance is of no effect. Offer of par N. Y. C. C., Sec. 707. tial per formance. be made. SEC. 1487. An offer of performance must be made by By whom to the debtor, or by some person on his behalf and with his assent. N. Y. C. C., Sec. 708. be made. SEC. 1488. An offer of performance must be made to To whom 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 receive 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. N. Y. C. C., Sec. 709. may be made SEC. 1489. In the absence of an express provision to where offer 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, bo 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. N. Y. C. C., Sec. 710. SEC. 1490. Where an obligation fixes a time for its performance, an offer of performance must be made at that time, within reasonable hours, and not before nor afterwards. N. Y. C. C., Sec. 711. When offer must be made. SEC. 1491. Where an obligation does not fix the time Same. for its performance, an offer of performance may be made at any time before the debtor, upon a reasonable demand, has refused to perform. N. Y. C. C., Sec. 712. tion after delay in per SEC. 1492. Where delay in performance is capable of compensa exact and entire compensation, and time has not been ex-formance. Offer to be made in good faith. Conditional offer. Ability and willingness essential. Production of thing to pressly declared to be of the essence of the obligation, 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. SEC. 1493. This provision, which is new, is intended to obviate the difficulties which constantly arise in determining whether time is of the essence of a contract or not. This provision [offer of compensation] is also new. But as such tender is permitted by statute after an action bas been commenced (2 R. S., 554, Sec. 20), it clearly ought to be allowed before any litigation is had, to stop interest and avoid costs. Undoubtedly it is not allowed by the common law (Poole vs. Tumbridge, 2 M. & W., 223; Hume vs. 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 vs. Strong, 2 Conn., 659). N. Y. C. C., Sec. 713. 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. N. Y. C. C., Sec. 714. SEC. 1494. An offer of performance must be free from any conditions which the creditor is not bound, on his part, to perform. N. Y. C. C., Sec. 715. SEC. 1495. An offer of performance is of no effect if the person making it is not able and willing to perform. according to the offer. SEC. 1496. All the precedents assume this to be essential. Ability, however, and not readiness, is the true test. If a debtor knows that his creditor will not accept performance, he should not be required to prepare anything for delivery, at a useless cost of time and trouble. N. Y. C. C., Sec. 716. The thing to be delivered, if any, need not be delivered, in any case be actually produced, upon an offer of performance, unless the offer is accepted. not neces sary. This is an innovation upon the common law, as far as obligations for the payment of money (Bakeman vs. Pooler, 15 Wend., 637; Hornby vs. Cramer, 12 How. Pr., 491; Finch vs. Brook, 1 Bing. N. C., 253), or for the delivery of a written instrument (see Brooklyn Bank vs. Degrauw, 23 Wend., 342), are concerned. But the present rule seems useless. In respect to bulky articles, this section is in conformity with the common law (Slingerland vs. Morse, S Johns., 474; Myers vs. Davis, 26 Barb., 367; Coit vs. Houston, 3 Johns. Cas., 243). N. Y. C. C., Sec. 717. SEC. 1497. A thing, when offered by way of performance, must not be mixed with other things from which it cannot be separated immediately and without difficulty. N. Y. C. C., Sec. 718. of condition SEC. 1498. When a debtor is entitled to the perform- Performance ance of a condition precedent to, or concurrent with, per- precedent. formance on his part, he may make his offer to depend upon the due performance of such condition. N. Y. C. C., Sec. 719. receipts. SEC. 1499. 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. Its propriety should seem scarcely to admit of doubt. N. Y. C. C., Sec. 720. of pecuniary SEC. 1500. An obligation for the payment of money Extinction is extinguished by a due offer of payment, if the amount obligation. is immediately deposited in the name of 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 vs. De Grauw, 23 Wend., 342). But this has been wisely overruled (Des Arts vs. Leggett, 16 N. Y., 582). The provision 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. N. Y. C. C., Sec. 721. to mode of SEC. 1501. All objections to the mode of an offer of Objections performance, which the creditor has an opportunity to offer. 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. N. Y. C. C., Sec. 722. thing offered Sec. 1502. The title to a thing duly offered in perfor- Title to mance of an obligation passes to the creditor, if the debtor at the time signifies his intention to that effect. Des Arts vs. Leggett, 16 N. Y., 582; Lamb vs. Lathrop, 13 Wend., 95; Rix vs. Strong, 1 Root, 55; see Smith vs. Custody of thing offered. Effect of offer on accessories of obligation Creditor's retention of 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 Sec. 721 removes the ground of this distinction. N. Y. C. C., Sec. 723. NOTE.-See Sec. 1500 of this Code. SEC. 1503. 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 reasonable diligence he can find a suitable depositary therefor, until he has deposited it with such person. N. Y. C. C., Sec. 724. SEC. 1504. An offer of payment or other performance, duly made, though the title to the thing offered be not transferred to the creditor, stops the running of interest on the obligation, and has the same effect upon all its incidents as a performance thereof. N. Y. C. C., Sec. 725. SEC. 1505. If anything is given to a creditor by way thing which 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. he refuses to accept. N. Y. C. C., Sec. 726. What ex cuses per. formance, etc. CHAPTER 111. PREVENTION OF PERFORMANCE OR OFFER. SECTION 1511. What excuses performance, etc. 1513. Same. 1514. Same. 1515. Effect of refusal to accept performance before offer. SEC. 1511. The want of performance of an obligation, or of an offer of performance, in whole or in part, or any delay therein, is excused by the following causes, to the extent to which they operate: 1. When such performance or offer is prevented or delayed by the act of the creditor, or by the operation of law, even though there may have been a stipulation that this shall not be an excuse. 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, 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. N. Y. C. C., Sec. 727. SEC. 1512. 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. N. Y. C. C., Sec. 728. Effect of prevention of perform ance. SEC. 1513. If a debtor is dissuaded by his creditor same. 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. N. Y. C. C., Sec. 729. SEC 1514. If performance of an obligation is prevented Same. 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, according to the benefit which the creditor receives from the actual performance. N. Y. C. C., Sec. 730. refusal to accept performance SEC. 1515. A refusal by a creditor to accept perform- Effect of ance, made before an offer thereof, is equivalent to an offer and refusal, unless, before performance is actually before offer. due, he gives notice to the debtor of his willingness to accept it. N. Y. C. C., Sec. 731. |