creditor, if the debtor at the time signifies his intention to that effect. En. March 21, 1872. Cal.Rep. Cit. 98, 399; 106, 446. § 1503. Custody of thing offered. 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. En. March 21, 1872. Depositary for hire: See post, sec. 1852. § 1504. Effect of offer on accessories of obligation. 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. En. March 21, 1872. Cal.Rep.Cit. 50, 651; 74, 256; 98, 399; 113, 662; 123, 543. Tender bars costs: Code Civ. Proc., sec. 1030. Effect of offer in writing is the same as tender: Code Civ. Proc., sec. 2074. § 1505. Creditor's retention of thing which he refuses to accept. 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. En. March 21, 1872. Costs when tender is made before suit brought: Code Civ. Proc., sec. 1030. Gratuitous depositary: See post, secs. 1844 et seq. CHAPTER III. PREVENTION OF PERFORMANCE OR OFFER. § 1511. What excuses performance, etc. § 1512. § 1513. Effect of prevention of performance. § 1514. Same. § 1515. Effect of refusal to accept performance before offer. § 1511. What excuses performance, etc. 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. En. March 21, 1872. Cal.Rep.Cit. 95, 357; 96, 352; 98, 399. Subd. 2-129, 227. Subd. 3-119, 102. § 1512. Effect of prevention of performance. If the performance of an obligation be prevented by the creditor, the debtor is entitled to all the benefits which he would have obtained if it had been performed by both parties. En. March 21, 1872. Am'd. 1873-4, 240. Cal.Rep.Cit. 86, 614; 92, 182; 105, 520. § 1513. Same. (Repealed.) En. March 21, 1872. Rep. 1873-4, 240. § 1514. Same. 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. En. March 21, 1872. § 1515. Effect of refusal to accept performance before offer. 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. En. March 21, 1872. Cal.Rep. Cit. 98, 399. Refusal to perform entitles the other party to enforce the obligation without performance on his part: See, ante, sec. 1440. 1521. Accord, what. An accord is an agreement to accept in extinction of an obligation, something different from or less than that to which the person agreeing to accept is entitled. En. March 21, 1872. Am'd. 1873-4, 240. Cal.Rep.Cit. 92, 37; 119, 466. Release of obligations: See post, secs. 1541 et seq. Substituting a new obligation for the existing one is a novation: See post secs. 1530 et seq. Order on third person, effect of: See, post, sec. 1533. 1522. Effect of accord. Though the parties to an accord are bound to execute it, yet it does not extinguish the obligation until it is fully executed. En. March 21, 1872. Cal.Rep.Cit. 92, 37. § 1523. Satisfaction, what. Acceptance, by the creditor, of the consideration of an accord extinguishes the obligation, and is called satisfaction. En. March 21, 1872. Cal.Rep.Cit. 56, 495; 92, 37. See next section.. $1524. Part performance. Part performance of an obligation, either before or after a breach thereof, when expressly accepted by the creditor in writing, in satisfaction, or rendered in pursuance of an agreement in writing, for that purpose, though without any new consideration, extinguishes the obligation. En. March 21, 1872. Am'd. 1873-4, 241. Cal.Rep.Cit. 56, 495; 88, 552; 92, 37. § 1530. § 1531. 1532. § 1533. § 1530. Novation, what. Novation is the substitution of a new obligation for an existing one. En. March 21, 1872. Cal.Rep.Cit. 49, 50; 60, 395. See sec. 1532, infra. Right to sue on contract made for one's benefit: See, post, sec. 1559. § 1531. Modes of novation. Novation is made: 1. By the substitution of a new obligation between the same parties, with intent to extinguish the old obligation; 2. By the substitution of a new debtor in place of the old one, with intent to release the latter; or, 3. By the substitution of a new creditor in place of the old one, with intent to transfer the rights of the latter to the former. En. March 21, 1872. Cal.Rep.Cit. 60, 395; 63, 502; 72, 551; 86, 576; 110, 263; 131, 497. § 1532. Novation a contract. Novation is made by con tract, and is subject to all the rules concerning contracts in general. En. March 21, 1872. Cal.Rep.Cit. 54, 338; 60, 395; 109, 596. § 1533. Rescission of novation. When the obligation of a third person, or an order upon such person, is accepted in satisfaction, the creditor may rescind such ((such) acceptance if the debtor prevents such person from comply. ing with the order, or from fulfilling the obligation; or if, at the time the obligation or order is received, such person is insolvent, and this fact is unknown to the creditor, or if, before the creditor can with reasonable diligence present the order to the person upon whom it is given, he becomes insolvent. En. March 21, 1872. Am'd. 1873-4, 241. § 1541. CHAPTER VI. RELEASE. Obligation extinguished by release. § 1542. Certain claims not affected by general release. § 1543. Release of one of several joint debtors. 1541. Obligation extinguished by release. An obligation is extinguished by a release therefrom given to the debtor by the creditor, upon a new consideration, or in writing, with or without new consideration. En. March 21, 1872. Cal.Rep.Cit. 57, 51; 78, 555; 121, 253. Writing imports a consideration: Post, sec. 1614. § 1542. Certain claims not affected by general release. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. En. March 21, 1872. Am'd. 1873-4, 241. Cal.Rep. Cit. 86, 253; 86, 254; 119, 469; 134, 548. § 1543. Release of one of several joint debtors. A release of one of two or more joint debtors does not extinguish the obligations of any of the others, unless they are mere guarantors; nor does it affect their right to contribution from him. En. March 21, 1872. Cal.Rep. Cit. 63, 158; 68, 89; 68, 90; 70, 114; 76, 7; 86, 253; 122, 654; 125, 512; 130, 254; 133, 113. Guarantor's liability discharged: See post, sec. 2819. Rights of sureties: See post, sec. 2844. |