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Creditor's retention of thing which he

refuses to accept.

est on the obligation, and has the same effect upon all its incidents as a performance thereof.

NOTE.-Kortright vs. Cady, 21 N. Y., p. 343; Law vs. Jackson, 9 Cow., p. 641; Raymond vs. Bearnard, 12 Johns., p. 274; Chilton vs. Carrington, 15 C. B., pp. 95, 730. See note to Secs. 1485, 1500.

1505. 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.

NOTE.-Kingston Bank vs. Gay, 19 Barb., p. 460; Gordon vs. Strange, 1 Exch., p. 477.

What

excuses

perform

ance, etc.

CHAPTER III.

PREVENTION OF PERFORMANCE OR OFFER.

SECTION 1511. What excuses performance, etc.

1512. Effect of prevention of performance.

1513. Same.

1514. Same.

1515. Effect of refusal to accept performance before offer.

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such performance or offer may be made, and not rescinded before that time.

NOTE.-Subd. 1.-Where performance is simply delayed, and not made forever impossible, delay only is excused (Williams vs. Vanderbilt, 29 Barb., p. 491; Schilizzi vs. Derry, 4 El. & Bl., p. 873; White vs. Mann, 26 Maine, p. 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 vs. Libby, 2 Johns., p. 336; The Tutela, 6 Rob. Adm., p. 177; see the Isabella Jacobina, 4 Rob. Adm., p. 77. "Prevented or delayed by act of creditor."-See Masterton vs. Mayor, etc., of Brooklyn, 7 Hill, p. 61; McConihe, vs. N. Y. & Erie R. R Co., 20 N. Y., p. 495; Ellen vs. Topp, 6 Exch., pp. 424–440. "Prevented or delayed by the operation of law."-See Jones vs. Judd, 4 N. Y., p. 411; People vs. Bartlett, 3 Hill, p. 570; Esposito vs. Bowden, 4 El. & Bl., p. 963.

Subd. 2.-The rule laid down in Tompkins vs. Dudley, 25 N. Y., p. 272, and Harmony vs. Bingham, 12 id., p. 99, is that not even the act of God excuses the non-performance of a contract, though it relieves from an obligation 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; such a principle cannot be reconciled with the decision in Wolfe vs. Howes, 20 N. Y., p. 197. The clause here inserted is consistent with all that was actually decided in these ca-es, 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 vs. Lloyd, W. Jones, p. 179; Taylor vs. Caldwell, 3 Best & S., p. 826.

Subd. 3.-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 vs. Hunter, 6 N. Y., p. 203; Carman vs. Pultz, 21 id., p. 547; Fleming vs. Gilbert, 3 Johns., p. 531; Farnham vs. Ross, 2 Hall, p. 167; Higgins vs. Solomon, id., p. 482; Southworth vs. Smith, 7 Cush., p. 391; Gilmore vs. Holt, 4 Pick., p. 258. Not only a positive request of the creditor (Carman vs. Pultz, 21 N. Y., p. 547), but any act on his part which would make performance or an offer thereof useless (Cornwell vs. Haight, 21 N. Y., p. 462), excuses the want of performance. "Done at or before the time at which

Effect of

prevention

ance:

Am

the offer may be made."-Skinner vs. Tinker, 34 Barb.,

p. 333; Crist vs. Armour, id., p. 378.

1512. If the performance of an obligation is pre

of perform- vented by the creditor, the debtor is entitled to all the benefits which he would have obtained by its performance on both sides.

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NOTE.-Masterton vs. Mayor of Brooklyn, 7 Hill, p. 61; see Clarke vs. Mayor, etc., of New York, 4 N. Y., p. 338.

1513. If a debtor is dissuaded by his creditor 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.

1514. If performance of an obligation is prevented 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.

NOTE.-In Clark vs. Gilbert, 26 N. Y., p. 279, reversing S. C., 32 Barb., p. 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 intervention of law, or of a superhuman cause, the party required to perform cannot recover the entire compensation to which he would have been entitled upon full performance, even though he is entirely without fault.-Melville vs. De Wolf, 4 El. & Bl., p. 843. But he is entitled to a compensation according to the proportion of time or labor expended by him, subject to the rule of the text.-Wolfe vs. Howes, 20 N. Y., p. 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.

1515. 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.

NOTE.-Meserole vs. Archer, 3 Bosw., pp. 376-382; North vs. Pepper, 21 Wend., p. 638; Traver vs. Halstead, 23 Wend., p. 66.

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CHAPTER IV.

ACCORD AND SATISFACTION.

SECTION 1521. Accord, what.

1522. Effect of accord.

1523. Satisfaction, what.

aw 1524. Accord of liquidated debt.

what.

1521. An accord is an agreement to accept, in Accord. extinction of an obligation, something to which the person agreeing to accept is not otherwise entitled.

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

acoord.

1522. Though the parties to an accord are bound Effect of to execute it, yet it does not extinguish the obligation until it is fully executed.

NOTE.-See Billings vs. Vanderbeck, 23 Barb., p. 546; Gabriel vs. Dresser, 15 C. B., p. 622; Day vs. Roth, 18 N. Y., p. 456; Russell vs. Lytle, 6 Wend., p. 390; Tilton vs. Alcott, 16 Barb., p. 598; Mitchell vs. Hawley, 4 Denio, p. 417.

tion, what.

1523. Acceptance, by the creditor, of the consid- Satisfa eration of an accord extinguishes the obligation, and is called satisfaction.

NOTE.-Hall vs. Flockton, 16 Q. B., p. 1039; Jones vs. Sawkins, 5 C. B., p. 142. Though an accord and

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satisfaction is not at common law a defense to a claim founded upon a record or specialty (Mitchell vs. Hawley, 4 Den., p. 414), this section does not recognize such a distinction.

1524. Part performance of an obligation, either before or after a breach thereof, when expressly accepted by the creditor in satisfaction, or rendered in pursuance of an agreement for that purpose, though without any new consideration, extinguishes the obligation.

NOTE. Before the passage of the Act of 1868 (see Stats. 1868, p. 31), the rule of law was that payment of an amount less than that of a liquidated debt then payable was not a satisfaction thereof, though accepted as such.-Deland vs. Heitt, 27 Cal., p.611; Pierson vs. McCahill, 21 Cal., p. 122; but see, also, Gavan vs. Annan, L. and Co., 2 Cal., p. 494. Such, also, is yet the settled law in many of the States.-Palinerston vs. Huxford, 4 Denio, p. 166; Neary vs. Bostwick, 2 Hilt., p. 514; see Evans vs. Powis, 1 Exch., p. 601; Wilkinson vs. Byers, 1 Ad. and El., p. 106; Brooks vs. White, 3 Metc., p. 286; Goodnow vs. Smith, 18 Pick., p. 414; Smith vs. Brown, 3 Hawk, p. 580; Von Gerhard vs. Lighte, 13 Abb. Pr., p. 101; Harrison vs. Wilcox, 2 Johns., p. 448; Dederick vs. Leman, 9 id., p. 333; Scott vs. Hunt, 2 How. Pr., p. 58; Down vs. Hatcher, 10 Ad. and El., p. 121; Thomas vs. Heathorn, 2 B. and C., p. 477; Fitch vs. Sutton, 5 East., p. 230; Cumber vs. Wane, 1 Str., p. 426. This rule of the common law was not founded upon natural justice, nor can it be supported upon any other than technical grounds. An agreement to accept a barrel of flour in satisfaction of a debt of one thousand dollars was valid, and if the flour was delivered the debt was satisfied. So a release under seal, without any consideration, extinguished the debt. But an agreement to accept nine hundred and ninety-nine dollars in satisfaction of the debt was unavailing, and the obligation to pay the other dollar was unimpaired. In Pennsylvania, the rule has been disavowed for over thirty years past. (Milliken vs. Brown, 1 Rawle, p. 391.) It has been abolished in Maine by statute. (Laws 1851, Ch. 213. The section given above is substantially the law of 1867-8.

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