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Coit v. Houston.

in coal, at a price agreed on, which appeared to be the market price at that time.

If the plaintiffs had actually received the coal, the satisaction would have been complete ; and no possible objection could be raised against it. Or if the sale of the coal would be considered as complete, or the plaintiffs, by their own acts, waived any thing farther being done, on the part of the defendant, in order to complete the sale, and the coal remained afterwards at their risk, I cannot see why satisfaction was not in fact received. Those were points, however, properly submitted to the determination of the jury, who, by their verdict, have decided the fact, and, I think, in a manner fully justified by the testimony. The plaintiffs, after the agreement for the coal, offered them for sale to Dodge. and when requested by the defendant to take them away, they promised to do it. The only objection with them seemed to be, that it was not at that time convenient; not that they considered the contract for the sale of the coal as incomplete, or that any thing farther was to be done on the part of the defendant, in order to complete it. There was no pretence that the coal were to be brought by the defendant to the plaintiff's store, or yard. These were circumstances from which the jury might infer an actual acceptance at the place where the coal lay, and that they were there at the risk of the plaintiffs. Although I do not think it necessary, for the purpose of determining the present question, to say, that in all cases a tender and refusal shall be equivalent to an actual acceptance; yet I think it a rule founded in good sense, and one that is not contradicted by the general

tenor of the authorities. Whether, in this case, [*249] there was a tender and refusal, were questions for

the determination of the jury. And even admitting there was no actual legal tender, it would not, in my judgment, alter the result. The party to whom it is to be made, has, undoubtedly, a right to waive that ceremony, and I think the circumstances here are fully sufficient to warrant such an inference. When it is said that a tender and re

Coit v. Houston.

fusal is equivalent to an actual performance, it is not to be understood that it amounts to an absolute discharge of the party from all liability on the contract. In the case of a tender of money, it only discharges the subsequent interest and costs. And in the case of goods, like the present, it only exonerates the party from responsibility for their safe keeping. But as long as he continues in possession of the goods, he will be bound to deliver them on demand. And if he should dispose of them, he would be answerable for the avails. On the whole, I think it a rule fully warranted by the authorities, that a contract or agreement which will afford a complete recompense to a party for an original demand, ought to be received, as a substitute and satisfaction for such demand, and is sufficient to support a plea of accord and satisfaction. This appears to me to be a rule founded on sound principles, and one calculated for the futherance of justice. In the present case, the plaintiffs remedy must be upon the agreement for the sale of the coal, in which case complete justice can be dispensed, according to the true intent and meaning of the parties. I am, therefore, of opinion, that no new trial ought to be granted.

LIVINGSTON, J. concurred. The substance of his opinion was as follows:

There were acts equivalent, under the circumstances of the case, to a tender of the coal; and that amounted to a performance of the new agreement on the part of the defendant. The contract of the 24th December, 1800, was no doubt valid. The plaintiffs accepted it, and became *parties to it, and there was a consideration [*250] on each part. The plaintiffs were to receive coal in payment of the note, at a fixed valuation. The defendant was to receive his note in return. There was a benefit accruing to each party. The contract was also sufficiently certain, and each might have demanded performance instantly.

The time and place of the tender were here sufficiently supplied. It is a rule, that money must be tendered to the

Coit v. Houston.

payee in person, or where the payee resides, when no place certain is fixed. (Co. Litt. 210, a. b. 1 Ch. Cas. 29.) But this rule must, of necessity, be different, when bulky articles are the object of the tender. In many cases, the removal of the article to the residence of the payee would be impossible; and, in the present case, it would have been attended with great difficulty, as the coal could only have been removed in parcels, and there was no proper place where they could have been deposited. It is, therefore, an obvious dictate of reason and justice, that when no time and place are given, the party who is to deliver may inform the other party that the cumbersome article is ready, at a certain place, and if no objection be made, the appointment of the place will be good. Pothier prescribes the same rule in the French law.(a) So money, in bulk, has been tendered at a place appointed by a mortgagor, and sanctioned by Lord Ch. King, because no objection was made. (2 P. Wms. 378.) A tender in bank notes is also good, when no objection is made.(b) (Buller, J. 3 Term Rep. 554.) Silence will give effect to an act otherwise doubtsul; but here was every reason to infer an acquiescence on the part of the plaintiffs as to the place of delivery. The tender, therefore, was good, there being no

.

(a) [Old note.) Trait. du Contrat de Vente, No. 52, p. 2, c. 1, art. 2, s. 2. S'il n'y a point de lieu exprime, la livraison doit se faire au lieu ou est la chose ; c'est a l'acheteur a l'envoyer chereher, doc.

(b) Bank notes are not a lawsul tender in the fulfilment of a contract to pay money. (Donaldson v. Benton, 4 Dev. & Batt. 435.) But when bank notes are offered in payment, and no objection is made on that account, it is a good tender. (Williams v. Rorr, 7 Mis. 556 ; Seawell v. Henry, 6 Ala. 226; Noe v. Hodges, 3 Humph, 162; Snow v. Perry, 9 Pick. 539. But see Hallowell and Augusta Bank v. Howard, 13 Mass. 235; United States Bank v. Bank of Georgia, 10 Wheat. 333. Aliter, Moody v. Mahurin, 4 N. Hamp. 296.) And this, although specie payments have been suspended by the bank. (Seawell v. Henry, 6 Ala. 226.) And an objection made on different grounds, is, it seems, an implied waiver of the objection to the character of the currency. (Noc v. Hodges, 3 Humph. 162.) Thus, if a debtor tender bank bills instead of gold and silver, and the creditor objects to them only because they are not the amount due, the tender will be a good one, if it is the amount actually due. (Ball v. Stanley, 5 Yerg. 199; Wheeler v. Knagg8, 8 Ham. 169.)

Coit v. Houston.

objection made as to the want of any of the requisite formalities. It was unnecessary for the defendant to go on further, for *the plaintiffs were satisfied with [*251) what he had done, and said they would send and take away the coal. It is settled that the act of one party will cure an imperfect tender, or waive the necessity of one altogether. (Doug. 694. Judah v. Kemp, October term, 1801.) (2 Johns. Cases, 411.) Such a tender of performance of a valid agreement, ought to be equivalent to performance, in order to avoid circuity of action. To enforce payment of the note, in spite of the agreement and tender, would be unreasonable, and the law does not permit it. It is a principle settled, that if a person is to acquire a right to a debt or duty by previously doing some act, this right is as completely vested by an offer to do it and a refusal, as if the act had been actually performed, or, in other words, tender and refusal is equivalent to a performance. (Cro. Jac. 245. Doug. 694. 1 Wils. 117.) On tender of the coal, in the present case, (for a tender and acquiescence or acceptance must certainly be of as much force as tender and refusal,) the defendant acquired a right to the note, and might have brought trover for it, which could not be, if the plaintiffs can now sue upon the note. The cases that look to the contrary do not decide against this principle, if they are carefully examined. In Peyton's Case, (9 Co. 79. b.) a tender and refusal were not before the court; and in the case in Sir T. Jones, 6, it does not appear whether the new agreement was valid. So in Cock v. Honychurch, (T. Raym. 203,) there was no tender pleaded of the attorney's bill; and the new editor of Bacon, (vol. 1, 24,) observing on this case, says that if the defendant had demanded the bill, and tendered a reasonable sum, it might have been good. On the other hand, the case of Case v. Barber, (T. Raym. 450,) and those in Sir T. Jones, 258, and 168, are in point. The doctrine is, that if no action lies on the mutual promise, such agreement is no bar. In a late case, also, in K. B. (5 Term Rep. 143,) Grose, J. admitted that there were some cases in which

Coit v. Houston.

it had been held, that where one party has satisfied [*252] the other, as far as he could, by tender and * refusal,

it might be pleaded. There are cases that say the agreement is bad ; but none that say that tender and refusal on a valid agreement substituted to the other, and on which an action lies, might not be pleaded. Pothier (Trait. des Oblig. p. 2, c. 6, s. 9, $ 4, n. 22,) is very clear to the same effect. “One may, by the pact constitutæ pecuniæ, promise to pay, in lieu of the sum due, another sum or thing. Let us suppose that my debtor of 30 pistoles, promises to pay me six puncheons of wine, of his own vintage, in payment of the 30 pistoles. This pact does not destroy the first obligation, and I may, by virtue of it, demand of my debtor the 30 pistoles; but as, by the pact, I have agreed that he might pay me, instead of that sum, six puncheons of wine, he may by pleading the pact, (per exceptionem pacti,) and tendering the wine, require to be discharged from the demand of the 30 pistoles. By means of this plea, of which he may avail himself, the first obligation, which was a pure and simple obligation to pay me precisely 30 pistoles, receives a modification, and becomes an agreement to pay 30 pistoles, with the power of paying six puncheons of wine instead of that sum."

Radcliff, J. It will be unnecessary, in this case, to repeat the facts which have been stated, except so far as they may be material to distinguish the grounds on which I differ from the opinions already delivered ; and it is equally unnecessary to renew the discussion of several points in which I fully agree with my brethren.

I consider the contract for the sale and delivery of the coal in satisfaction of the plaintiff's debt as valid, and of course, that it is sufficient to support an action for its non-performance against the party in default on either side. It is founded on a good consideration, and, being in writing, it cannot be affected by the statute of frauds. I also agree, that in re

lation to these parties, and for the purpose of effectu[*253] ating this contract, a tender and refusal *would be

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