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§ 1476. Effect of directions by creditors. If a creditor, or any one of two or more joint creditors, at any time directs the debtor to perform his obligation in a particular manner, the obligation is extinguished by performance in that manner, even though the creditor does not receive the benefit of such performance. En. March 21, 1872.

Cal.Rep.Cit. 76, 644.

$ 1477. Partial performance. A partial performance of an indivisible obligation extinguishes a corresponding proportion thereof, if the benefit of such performance is voluntarily retained by the creditor, but not otherwise. If such partial performance is of such a nature that the creditor cannot avoid retaining it without injuring his own property, his retention thereof is not presumed to be voluntary. En. March 21, 1872.

Cal.Rep.Cit. 88, 552.

$ 1478. Payment, what. Performance of an obligation for the delivery of money only is called payment. En. March 21, 1872.

Cal.Rep.Cit. 99, 94.

$ 1479. Application of general performance. Where a debtor, under several obligations to another, does an act, by way of performance, in whole or in part, which is equally applicable to two or more of such obligations, such performance must be applied as follows:

1. If at the time of performance, the intention or desire of the debtor that such performance should be applied to the extinction of any particular obligation, be manifested to the creditor, it must be so applied.

2. If no such application be then made, the creditor, within a reasonable time after such performance, may apply it toward the extinction of any obligation, performance of which was due to him from the debtor at the time of such performance; except that if similar obligations were due to him, both individually and as a trustee, he must, unless otherwise directed by the debtor, apply the performance to the extinction of all such obligations in equal proportion; and an application once made by the creditor cannot be rescinded without the consent of [the] debtor.

3. If neither party makes such application within the time prescribed herein, the performance must be applied to the extinction of obligations in the following order; and, if there be more than one obligation of a particular class, to the extinction of all in that class, ratably:

(1) Of interest due at the time of the performance.
(2) Of principal due at that time.
(3) Of the obligation earliest in date of maturity.

(4) Of an obligation not secured by a lien or collateral undertaking.

(5) Of an obligation secured by a lien or collateral undertaking. En. March 21, 1872. Am'd. 1873-4, 239. Cal.Rep.Cit. 69, 121; 81, 58;

88, 391.

Subd. 1 - 81, 406; 114, 625. Subd. 3 – 97, 292; 119, 302; 125, 488.

CHAPTER II.

OFFER OF PERFORMANCE. $ 1485.

Obligation extinguished by offer of performance. $ 1486. Offer of partial performance. § 1487. By whom to be made. § 1488. To whom to be made. $ 1489. Where offer may be made. $ 1490: When offer must be made. $ 1491. Same. $ 1492. Compensation after delay in performance. $ 1493. Offer to be made in good faith. $ 1494. Conditional offer. $ 1495. Ability and willingness essential.

1496, Production of thing to be delivered not necessary. $ 1497. Thing offered to be kept separate. $ 1498. Performance of condition precedent.

1499. Written receipts. $ 1500. Extinction of pecuniary obligation. $ 1501. Objections to mode of offer. $ 1502. Title to thing offered. $ 1503. Custody of thing offered.

1504. Effect of offer on accessories of obligation. $ 1505. Creditor's retention of thing which he refuses to accept.

$ 1485. Obligation extinguished by offer of performance. An obligation is extinguished by an offer of performance, made in conformity to the rules herein prescribed, and with intent to extinguish the obligation. En. March 21, 1872.

Cal.Rep.Cit. 98, 382.
Tender of payment: See secs. 1500, 1504, infra.

Tender of article passes title: Sec: 1502, infra; and see sec. 1504.

Duties of person making tender: See sec. 1503.

§ 1486. Offer of partial performance. An offer of partial performance is of no effect. En. March 21, 1872.

Cal.Rep.Cit. 127, 483.

§ 1487. By whom to be made. An offer of performance must be made by the debtor, or by some person on his behalf and with his assent. En. March 21, 1872.

Cal.Rep.Cit. 63, 139 ; 119, 303,

$ 1488. To whom to be made. An offer of performance must be made 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, wherever the creditor may be found. En. March 21, 1872. Am'd. 1873-4, 240.

Cal.Rep.Cit. 125, 690.
See next section.

§ 1489. Where offer may be made. In the absence of an express provision to 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, be 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. En. March 21, 1872.

Cal.Rep.Cit. 98, 407; 113, 24; 125, 219.
Delivery of personalty: See post, secs. 1753 et seq.

See post, sec. 1756, as to giving notice of time of delivery on sales of personalty.

$ 1490. When offer must be made. 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. En. March 21, 1872.

Cal.Rep.Cit. 74, 255; 86, 373; 123, 20; 127, 117.

$ 1491. Same. Where an obligation does not fix the time for its performance, an offer of performance may be made at any time before the debtor, upon a reasonable demand, has refused to perform. En. March 21, 1872.

Cal.Rep.Cit. 74, 255.

$ 1492. Compensation after delay in performance. Where delay in performance is capable of exact and entire compensation, and time has not been expressly 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 mean time. En. March 21, 1872. Cal.Rep.Cit. 74, 256; 92, 133; 93, 142; 96, 343; 96, 344 ;

123, 10; 123, 20; 133, 445. 8 1493. Offer to be made in good faith. 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. En. March 21, 1872.

Cal.Rep.Cit. 130, 143.

$ 1494. Conditional offer. An offer of performance must be free from any conditions which the creditor is not bound, on his part, to perform. En. March 21, 1872.

Cal.Rep.Cit. 71, 503; 122, 320; 125, 690; 126, 668.

Offer of performance upon condition: See, post, secs. 1498, 1499.

8 1495. Ability and willingness essential. An offer of performance is of no effect if the person making it is not able and willing to perform according to the offer. En. March 21, 1872.

Cal.Rep.Cit. 74, 256; 109, 633.

8 1496. Production of thing to be delivered not necessary. The thing to be delivered, if any, need not in any case be actually produced, upon an offer of performance unless the offer is accepted. En. March 21, 1872.

Cal.Rep.Cit. 97, 151 ; 137, 288.

$ 1497. Thing offered to be kept separate. 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. En. March 21, 1872.

Vendor of personalty must put in condition for delivery: Post, sec. 1753.

$ 1498. Performance of condition precedent. When a debtor is entitled to the performance of a condition precedent to, or concurrent with, performance on his part, he may make his offer to depend upon the due performance of such condition. En. March 21, 1872. Cal.Rep.Cit. 49,

74, 255; 87, 59; 122, 321; 123, 543; 125, 690; 137, 289. Conditions precedent: See ante, sec. 1439.

25;

$ 1499. Written receipts. A debtor has a right to require from his creditor a written receipt for any property delivered in performance of his obligation. En. March 21, 1872.

Cal.Rep.Cit. 49, 25; 125, 690.
See, also, Code Civ. Proc., sec. 2075.

$ 1500. Extinction of pecuniary obligation. An obligation for the payment of money is extinguished by a due offer of payment, if the amount 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. En. March 21, 1872. Cal.Rep.Cit. 82, 51; 98, 395 ; 98, 399; 107, 115; 112, 37;

119, 544; 119, 550 ; 123, 543; 137, 382. Tender stopping interest: See post, sec. 1504.

§ 1501. Objections to mode of offer. 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. En. March 21, 1872. Cal.Rep.Cit. 73, 530 ; 79, 43; 87, 59; 109, 564; 122, 320;

122, 321; 122, 322; 137, 288; 137, 382. Similar provision, although more specific in its requirements: Code Civ. Proc., sec. 2076.

$ 1502. Title to thing offered. The title to a thing duly offered in performance of an obligation passes to the

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