IV. TENDER.

§ 256. What constitutes tender.- Upon a plea of tender, it is not sufficient to prove that the defendant asked the plaintiff if he would take the money, and said he was ready to pay it, and would give his check for it. Ladd v. Patten,* 1 Cr. C. C., 263.

§ 257. A cargo of iron having been injured by the carelessness of the ship-owner, the consignee made repeated offers, before suit brought, to pay the balance of the freight, deducting the loss occasioned by the injury, to be ascertained by arbitration, or by a sale of the damaged iron at auction, but they were refused and the whole amount of freight demanded. Afterwards a sale of the damaged iron took place, with notice to the agents of the vessel, and the amount of the loss was in that way ascertained; but no offer was made to pay the balance thus ascertained until the filing of the answer to the libel of the ship-owner. Held, that because of the offers and refusals that had previously taken place, the case must be regarded in admiralty as standing upon the same footing as if a tender had been made after the sale. Dedekam v. Vose, 3 Blatch., 44.

§ 258. - must be unconditional.— A tender of money upon condition of receiving change and a receipt in full for rent is not a legal tender. Perkins v. Beck,* 4 Cr. C. C., 68. § 259. A tender must be unconditional. Ibid.

§ 260. A conditional tender, in the absence of an express stipulation contemplating the condition, will not entitle the party making the tender to demand a release. B. agreed with his debtor, A., to accept and receive an assignment of a contract entered into by C., for the payment of $21,112 to A. for lands, "towards the discharge of his debt," the same to be ascertained by an award, and if the sum of $21,112 should exceed the amount of the award, that he, B., would pay the excess to A. By the award, the excess of the sum of $21,112 beyond the debt due by A. to B. was ascertained to be £494 6s. 7d. Virginia currency. A. afterwards tendered to B. a deed of assignment of the contract, upon condition that he would first sign, seal and deliver on the same day a release of all claims and demands upon him, A. B. refused to execute and deliver the release before the assignment of the contract, and the assignment was then withheld by A. Upon suit brought by A. for the excess as shown by the award, held, that the tender of the assignment, on condition that the release should be first executed, was not in compliance with the agreement, and that he could not recover. Hepburn v. Auld,* 1 Cr., 321.

§ 261. Must be kept good.-To have the effect of stopping interest or costs, a tender of payment must be kept good; and it ceases to have that effect when the money is used for other purposes. Bissell v. Heyward, 6 Otto, 580.

§ 262. The money should be deposited or in some manner set apart or appropriated for the purpose of the tender. Ibid.

§ 263. When unnecessary- Waiver.- Where a party declares that he will not receive money about to be tendered, the money need not be produced. Barker v. Parkenhorn, 2

Wash., 142.

§ 264. Any one bound to do a particular thing must either do it or offer to do it, and if no objections are made he must show he made the tender in a regular manner; but this is not necessary if the other party by his conduct dispenses with a regular tender, as by a previous refusal to accept it, etc. After an offer of performance and a refusal of acceptance, it is not in the power of the opposite party to say that he who made the offer would not or could not have done what he declared himself ready to do. Blight v. Ashley, Pet. C. C., 15.

§ 265. A party who, by reason of his residence in the south during the late rebellion, had been prevented from paying the yearly premiums as required for the continuance of the insurance policy on his life, wrote, upon the termination of hostilities, to the insurers, whose place of business was in Pennsylvania, making inquiry as to what steps he must take to continue his insurance. They replied that his insurance was forfeited by non-payment of the premium in 1861, the first year of the war, and that they would not revive it. Held, that this reply dispensed with an actual tender of the unpaid premiums, and the question of his right to have the insurance continued must be determined as if the premiums had been tendered with interest. Bird v. Penn Mutual Life Ins. Co.,* 11 Phil., 485; 1 Law & Eq. Rep., 505.

§ 266. Where a tender of performance or payment is necessary to the establishment of a right against another party, it will be considered as waived when it is reasonably certain that it will be refused. Accordingly where land was sold for taxes by commissioners, under the acts of congress of June 7, 1862, and February 6, 1863, and the proof showed that the commissioners had established and uniformly followed a general rule, under which they refused to receive, on property which had been advertised for sale, from any one but the owner or a party in interest, in person, the amount chargeable upon said property, held, that such rule

dispensed with the necessity of a tender, since a tender by the proper agent of the property owner would have been of no avail; and that the sale of such property under such rule was unauthorized, and conferred no title on the purchaser. United States v. Lee, 16 Otto, 196. § 267. Rights of plaintiff on plea of tender. The plaintiff, upon a plea of tender, cannot take out the money and proceed for more. Alexandria v. Patten, 1 Cr. C. C., 294.

§ 268. In admiralty. The doctrine of courts of admiralty on the subject of tender is less stringent than that of common-law courts; admiralty courts look to the substance and good faith of the transaction, rather than to technical forms of proceeding. Dedekam v. Vose, 3 Blatch., 44. $269.

effect of.— A tender admits a liability in admiralty, and decree must be rendered for amount tendered, although if no tender had been made, no recovery might have been had. Cain v. Garfield, 1 Low., 483.

$270. Miscellaneous. In a suit to recover money paid in advance on the purchase of a horse, which was to be forfeited if the balance was not paid by a certain day, it is incumbent on plaintiff to prove a tender within the time, or that he attended at the defendant's house on the last day, ready to pay, and that defendant was not there; if no place was agreed upon, then it was the duty of the plaintiff to use reasonable endeavors to find defendant. Bayley v. Duvall,* 1 Cr. C. C., 283.

$271. A mere attempt to negotiate a compromise of a claim at an amount specified, unaccompanied with a tender or direct offer to pay such amount, does not operate as an equitable bar to costs. The H. B. Foster, Abb. Adı., 222.

§ 272. The demand, by a creditor, of payment in a certain species of coin, does not dispense with the obligation, on the debtor, to make tender agreeably to his own sense of the law and the contract. Searight v. Calbraith, 4 Dall., 325.

V. ACCORD AND SATISFACTION.

$273. What constitutes.- A creditor took a number of notes of smaller amounts in lieu of one note for a larger sum, in order to bring the notes within the jurisdiction of a justice of the peace. Held, that the new notes created a new indebtedness and were an accord and satisfaction of the old note. In re Dixon, 2 McC., 556.

$274. A debtor delivered certain property to trustees in satisfaction of the debts due his various creditors, upon a mutual agreement among the creditors to receive the property as a discharge of his indebtedness. Held, that there was a valid accord and satisfaction, which was good as against the indorsee of a promissory note, payable on demand, given originally to one of the parties to the said agreement by the debtor, it not appearing that the note was indorsed before said accord and satisfaction was made. Bartlett v. Rogers, 3 Saw., 62. $275. Where congress has paid in full a doubtful claim presented with full knowledge of all the facts, such payment will be deemed to have been paid and received by accord in satisfaction and will be final and conclusive. Thus, where a sailing master in the navy became insane and remained in a private asylum for twenty-seven years, during which time he was supposed to be dead and was dropped from the navy register, but after his decease his friends applied to congress for half pay during the period of his insanity, the granting of such request by congress is such a settlement of their demands upon the government as to preclude them from prosecuting any further claim on the ground of mistake of law in the first application to congress by which half pay only was demanded, whereas the master or his representatives were entitled by law to full pay. Rush's Case,* 2 Ct. Cl., 167.

§ 276. An assignment of debts and balances of accounts cannot be pleaded as an accord and satisfaction to an action of debt on a bond. Buddicum v. Kirk, 3 Cr., 293.

$277. An accord must be executed. An executory agreement is not an accord and satisfaction. Accordingly, where a city agreed to issue its bonds to a contractor embarrassed in carrying out his contract, upon the consideration that the contractor would release the city from all liabilities on the contract, but letters of credit were issued instead of bonds, held, that the city having failed to carry out its agreement could not avail itself of the release; that the agreement was an executory agreement for an accord and satisfaction, and all performance on the part of the city having failed, the agreement to release was left without obligatory force. City of Memphis v. Brown, 20 Wall., 289.

§ 278. An accord must be executed before it can amount to satisfaction. An unperformed agreement is not sufficient, and cannot be pleaded in bar. United States v. Clarke,* Hemp.,

315.

§ 279. How pleaded.— Accord and satisfaction occurring after issue formed in a suit must be pleaded puis darrein continuance if the party would avail himself of it. Good v. Davis, Hemp., 16.

'VI. RECEIPTS.

§ 280. A receipt is only prima facie evidence of payment, and may be explained, varied or contradicted by parol or other extraneous testimony. Weed v. Snow,* 3 McL., 265.

§ 281. A receipt for so much is only evidence of payment, and may be explained by parol or other evidence. Maze v. Miller,* 1 Wash., 328.

§ 282. A receipt of payment by a note is only prima facie evidence of payment, which may always be explained by other testimony. Moore v. The Steamboat Fashion, Newb., 49. § 283. But unexplained, such receipt is conclusive, and the party against whom it is produced must establish its character if he wishes to avoid its legitimate effect. Ibid.

$284. If payment acknowledged in a receipt turn out to be a note, or bill, or the like, and if the same were not paid or received in satisfaction, and turn out unproductive, it is no payment. In order to make such note or bill a payment, it is necessary that it be received in satisfaction, and the receiver to run all risks, or where the receiver has made it his own by neglecting to give notice. Maze v. Miller,* 1 Wash., 328.

$285. A receipt in full is only prima facie evidence of what it purports to be; and if clearly proved to have been obtained by fraud, mistake or ignorance of the rights of the party, it will be examined into and corrected in a court of law, as well as in a court of equity; but if such evidence is not given, the presumption in favor of the validity of the instrument will prevail. Thompson v. Faussat, Pet. C. C., 182.

§ 286. A receipt in full on a settled account is not conclusive on the parties, but it is merely prima facie evidence of what it purports to be, and may be opened, if it be unfairly obtained. or be given under a mistake of facts or of the legal rights of the party complaining, for the correction of such errors as may be made out by proof. But if it be the result of a compromise, it is binding. Lawrence v. The Schuylkill Navigation Co., 4 Wash., 562.

$287. By seaman.- A settlement between the master of a vessel and a seaman of a claim for damages by the latter against the former for assault and battery, evidenced by a receipt, will not operate as an acquittance of the master, unless it appear that the seaman was free from constraint, and at liberty to exercise his deliberate judgment, and also that the satisfaction was reasonable. Where such a receipt was for "twenty-five cents for assault and battery, in full for all dues and demands," and was signed by the seaman in the cabin in the presence of the master and mate, no release from the shipping articles being given him until after he had signed the receipt, the master thus being at liberty to compel him to continue on the voyage in case the receipt had not been signed, instead of releasing him as the seaman desired, held, that the receipt under the circumstances was no bar to the seaman's claim for damages. Mitchell v. Pratt, Taney, 448.

§ 288. The receipt of a collector acknowledging payment is prima facie evidence, but not conclusive of the fact of payment. Johnson v. United States, 5 Mason, 425.

§ 289. A receipt of a collector upon a duty bond, acknowledging payment and satisfaction of the bond, does not operate as an estoppel. It is open to explanation, and is no bar to a suit on the bond if it be not paid. United States v. Williams, 1 Ware, 175.

$290. Operation of, confined to that for which they are given.- A contractor, who, having furnished for the erection of an arsenal a large quantity of stone, a portion of which is rejected by the government, receives payment for the amount of stone actually used, and gives a receipt for the payment of such specific number of yards, is not thereby concluded from seeking payment for the stone not embraced in the receipt. Kerchner v. United States,* 7 Ct. Cl., 579.

§ 291. By attorney for money paid by himself as attorney to himself as administrator.- Administrators upon an estate who were appointed in the Cherokee nation had a right to maintain a suit or prosecute a claim for money in the District of Columbia, and a payment to a person acting under a power of attorney from them would have been valid; but where this person, instead of receiving the money under his power of attorney, took out letters of administration in the District of Columbia, and then signed a receipt as attorney for money paid by himself as administrator to himself as attorney for the Cherokee administrators, this receipt is good, and the surety upon his administration bond is not responsible to the Cherokee heirs. Mackey v. Coxe, 18 How., 100.

VII. SETTLEMENT AND RELEASE.

$292. A covenant, under seal, to come to a settlement within a limited time and to pay the balance which might be found due, is merely collateral and cannot be pleaded as an extinguishment of a simple contract debt. the period within which the settlement was to be

made having elapsed before the commencement of the suit, and the plea not averring that any such settlement had been made. Baits v. Peters, 9 Wheat., 556.

§ 293. Settlement binding as an accord and satisfaction Subsequent attempt at arbitration. A board of levee commissioners effected a settlement with contractors for work done upon certain levees, by which a certain sum, based upon measurements and estimates made by the engineer of the board, was paid, and a receipt given in full for all demands. Subsequently, the contractors claiming that injustice had been done them by the settlement, an agreement was entered into reciting the former settlement and the receipt acknowledging the same, the complaint of the contractors, and stipulating that a board of arbitrators, consisting of engineers appointed in a designated manner, should measure all the work done and render to the parties to the agreement an estimate of the amount due to the contractors, if any, according to the original contracts: that if such estimate should differ from the sum paid by the terms of the former settlement, the difference should be paid or refunded as the case might be; that in the adjustment of all questions pertaining to measurement the contractors should have the privilege of introducing all proper evidence, the board to have the privilege of rebutting that evidence. A dispute occurring as to the admissibility of testimony proposed to be offered and the acceptance of the third arbitrator, the contractors abandoned the arbitration and brought suit for the balance claimed to be their due. Held, that the claim could not be enforced, as the prior settlement bound both parties as an accord and satisfaction; that the arbitrament was an agreement to open that settlement only to the extent of correcting errors, if any, in the measurement of the work, and that the proposed arbitrament having failed without the fault of the board the settlement stood. Hemingway . Stansell, 16 Otto, 399.

§ 292. Effect of non-compliance with terms of settlement.- Where a controverted case was, by agreement of the parties, entered settled, and the terms of the settlement were that the debtor should pay by limited day, and the creditor agreed to receive a less sum than that for which he had obtained a judgment, and the debtor failed to pay on the day limited, the original judgment became revived in full force. Early v. Rogers, 16 How., 599.

§ 295. Based upon false statements.- Where the treasurer of a corporation furnishes, with intent to deceive, a false statement of a contractor's account with the corporation, any settlement made upon the faith of such statement will be set aside. James v. Atlantic Delaine Co., 3 Cliff., 622.

§ 296. In ignorance of rights.-A., being indebted to B., took out a policy of insurance on his life for $3,000 and assigned the same to B. to secure his debt of $70; B. agreeing, in case of the receipt by him of the insurance money, to pay to the wife of A., his heirs and assigns, onethird of the amount of the policy. A. dying shortly after the issuing of the policy, B. received the amount of the policy, paying over one-third thereof to A.'s widow. The court, having found the policy of $3,000 to cover a debt of $70 to be a mere wager, held, that the receipt of the one-third of the insurance money by the widow did not conclude her as a settlement of the matter or prevent her recovering the balance of the amount of the policy, it being obvious that she was ignorant of the full extent of her rights, that she acted hastily and without due consideration. Cammack v. Lewis, 15 Wall., 643.

$297. By seamen.- Where libel is brought against the owner of a vessel by a seaman for wages, a clandestine settlement effected by the owner with the seaman will not prevent the latter's proctor from prosecuting the suit for costs, the seaman having received merely the amount of his wages without costs. Collins v. Nickerson, 1 Spr., 126.

§ 298. Where a seaman, after suit brought, effects a settlement with the master for damages for a tort of the latter, such settlement will be upheld, although made by the seaman in the absence of his proctor, if made fairly and understandingly and the consideration paid appears to be adequate. Brooks v. Snell, 1 Spr., 48.

$299. Release, effect of. A release covering the whole subject-matter of the claim, and not tainted with fraud, is conclusive. Perkins v. Fourniquet,* 14 How., 313.

$300. If the accounts between the parties are impeached, and a release has been obtained, executed by one of the parties, in a case depending before a court of chancery, the release will not prevent the court from looking into the settlements; and the release in such a case is entitled to no greater force in a court of equity than the settlement of the account on which it was given. Kelsey v. Hobby, 16 Pet., 269.

§301. Bond by the defendant, executor of R., to the plaintiff, his co-executor, conditioned to pay a sum of money, which is in his hands as assets, to the plaintiff, for the use of the proper and legal heirs of R., to whom it belongs. R. left two sons, A. and B., to whom he devised his estate. A., by an instrument reciting the bond, and that the money belongs to him and B., assigns and releases all his right in and to the same, for a valuable consideration. The release of A. cannot be pleaded as such, because A., equitably entitled to only one-half of the money, could not release the bond; but it may be given in evidence to prove payment of

his half of the debt. The acknowledgment of B. of the defendant's accounts, showing that his interest in the bond had been discharged, may be given in evidence by the defendant, to prove payment. Campbell v. Hamilton, 4 Wash., 92.

§ 302. cannot be enlarged beyond its intended scope.-M., an attorney, having claims against the government for legal services under two different contracts, 'rendered a specific account for one of them. After some personal negotiations he wrote a letter accepting the verbal offer of the secretary of the treasury to pay him a reduced amount in compromise and settlement of the balance claimed by him on the account rendered. The letter, after directing the amount to be sent by check, concluded: "And this letter may thereupon be taken as a full release and discharge of all claims under the said account or under the said contract." The secretary indorsed upon the account his approval "on the terms and conditions specified in the written memorandum," and referred the matter to a subordinate officer for examination and settlement. The memorandum stated that the amount allowed was in full of all claims and demands upon the government under the aforesaid contract, or any other contract," etc., "and said letter is hereby accepted as a full release and discharge by said M. of all indebtedness whatsoever from the United States to him." No notice of this memorandum was given to M., and the check was sent as directed in the letter. Held, that this memorandum at most only amounted to a direction to a subordinate officer to procure a general release before paying the money; that an official memorandum of a secretary is not a matter of record of which the public or persons dealing with the department are bound to take notice, and could in no way extend M.'s specific release of one indebtedness to a full release of all indebtedness whatsoever. Mellen v. United States,* 13 Ct. Cl., 71.

§ 303. duress - Undne advantage.- If a release is executed, and a settlement is made of a particular item in an account for which suit has been brought, and in which the party has been arrested, the settlement having been confined to the claim for the damages for which suit was brought, the mere circumstances of the defendant being detained by the process issued to recover the amount claimed would be no objection to the validity of the agreement and the release. But if, while under detention for want of special bail, a release was obtained of other matters than those embraced in the suit, and much more important in amount, and which had been insisted on for years in the suit previously instituted, then in the course of proceeding, neither the circumstances under which the release was taken, and the account connected with it settled, nor the contents of the papers, entitle them to any consideration in equity. Kelsey v. Hobby, 16 Pet., 269.

§ 304. An agreement by the plaintiff to release the defendant upon his executing a deed is a good defense in assumpsit, the deed being executed. Bartleman v. Douglass, 1 Cr. C. C., 450.

§ 305. Miscellaneous.- In equity, where a creditor agrees to receive specific articles in satisfaction of a debt, even although it be a debt upon bond, secured by mortgage, he will be held to the performance of his agreement, provided the agreement is not inequitable in its terms and effect; that there is a valuable consideration for such agreement, and that there is a readiness to perform and an absence of laches on the part of the debtor. Very v. Levy, 13 How., 345.

§ 306. C. was in possession of two drafts drawn by K. upon G. and accepted by him for the accommodation of K. C. pledged these drafts to the Farmers' Bank of Virginia, as collateral security for a debt which he owed to the bank. The drafts not being paid at maturity, the bank sued both Groves and King, and recovered judgments against them, which were liens upon their property. C. and K. then agreed that if C. were to purchase K.'s property at a certain sum, he would return his drafts to him and free him from the bank. To this agreement G. was a witness, and the purchase was accordingly made. C. and the bank then agreed that the bank should give him time, and he should give additional collateral security to the bank and mortgage his property; first reducing the liens of prior mortgages down to a certain sum. The bank was, moreover, to surrender the collateral securities previously received. The mortgage was made by C. and the collateral securities surrendered to him by the bank, After this the bank had no right to prosecute the judgment which it had obtained against G. By the first agreement made between K. and C., to which G. was privy, C. exonerated G., as far as it was in his power; and in consequence of the second agreement between C. and the bank, C. became re-invested with the whole control of the matter, and his previous exoneration of G. became immediately operative. G. was, therefore, entirely discharged from all responsibility. The failure of C. to comply with his contract with the bank did not prevent this exoneration of G. from being effectual. Farmers' Bank of Virginia v. Groves, 12