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37 Penn. St., p. 268; Pierce vs. Sweet, 33 id., p. 151. Such, also, has been the rule in this State. In Haynes vs. Waite, 14 Cal., p. 447, and in Smith vs. Owens, April T., 1861, it was held that if the debtor at the time of, or previous to payment, neglects to designate to which of several debts he applies his payment, his right to control the application is gone, and the creditor may exercise it at any time before suit. The above section changes this rule.

In Van Norden vs. Buckley, 5 Cal., p. 283, it was held: Where the maker did not specify that the payment to the indorser was to meet the indorsed note, the indorser had a right to apply it to any indebtedness he held against the maker, and to stand upon his strict legal rights as to demand and notice in regard to the indorsed note. In Phillips vs. Mayer, 7 Cal., p. 81, the plaintiff employed an agent to collect a note due from the defendant, and the defendant employed the same agent to collect other notes due him (the defendant), and to apply the same on the plaintiff's note. The agent failed after having collected money on defendant's account. The Court held that unless the appropriation was actually made, the loss occasioned by the failure of the agent must fall on the defendant. In Randall vs. Buffington, 10 Cal., p. 491, it was held that there was no rule of law which prevented a debtor in insolvent circumstances from the application of his property to the payment of one debt rather than another. See, also, Bishop vs. Hubbard, 23 Cal., p. 518.

CHAPTER II.

OFFER OF PERFORMANCE.

SECTION 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.

SECTION 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.

extin

offer of per

1485. An obligation is extinguished by an offer of Obligation performance, made in conformity to the rules herein guished by prescribed, and with intent to extinguish the obliga- formance. tion.

NOTE. This section must be taken in connection with the succeeding sections of this Chapter. When thus taken, the law as laid down, is to the effect: 1. That a debt payable in specific articles may be discharged by a tender of those articles at the proper time and place; 2. That the articles must be set apart and designated, so as to enable the creditor to distinguish them from others; 3. The tender must be of all the articles, and not a tender of a portion only; 4. Tender must be made by the debtor, or with his assent; 5. The tender must be to the creditor, or in his absence, then as authorized by this Chapter; 6. The property so tendered vests in the creditor, and is at his risk. In the celebrated case of Weld vs. Hadley, 1 N. H., p. 295, it was held that a tender of specific articles might discharge the debt, and yet the creditor, if he refused the tender, acquired no property in such articles. But this decision. has not been approved of, and probably is not now recognized as law in any State. Chancellor Kent (2 Comm., p. 509,), speaking of this case, says: "The case of Weld vs. Hadley was contrary to the doctrine declared in other cases; and the weight of argument, if not of authority, and the analogies of law, would appear to lead to the conclusion that on a valid tender of specific articles the debtor is not only discharged from his contract, but the right of property in the articles tendered passes to the creditor." The adjudged cases probably settle the doctrine thus laid down.-Rix vs. Strong, 1 Root, p. 55; Smith vs. Loomis, 7 Conn., p. 110; Curtis vs. Greenbanks, 24 Verm., p. 536; Tin vs. Rawley, 4 Barr, p. 169; Case vs. Green, 5 Watts, p. 262; Coit vs. Houston, 3 John. C., p. 243; Slingerland vs. Morse, 8 John., p. 474; Lamb vs. Lathrop, 13 Wend., p. 95; 2

Greenlf. Ev., Sec. 610; Parsons on Contracts, pp. 637655, and notes; see, also, California cases cited below.

In the case of Des Arts vs. Leggett, 16 N. Y., p. 582, Comstock, J., says: "The debtor who has contracted to deliver specific articles in payment of his debt, and who makes a valid tender, has done all in his power to perform his engagement. If the transaction is incomplete in consequence of the creditor's neglect or refusal to receive the articles, this is not the debtor's fault. As to him, there is a full performance, and he ought not to be burdened with the contract any longer. To say that he must abandon the articles in order to enable himself at all times to insist that he is freed from the obligation of the contract, is to expose not only the property to waste, but the debtor to consequences of needless severity if he happen to have made an insufficient tender, and to have judged erroneously on that point. In that event, he remains liable on his contract, while his property may become lost to him. If we say that he must not abandon the articles, but must keep them in readiness whenever called upon to deliver them upon the contract, then we merely assert in another form that the agreement is still in force against him, and that he remains indefinitely subject to its obligation, although he has once fully performed it if the tender was good. These results are avoided if we hold that, on a valid tender being made, the title is changed, and the law applies the property in complete satisfaction of the debt. Then the debtor may abandon if he elects so to do, and to incur the hazard. If he does not so elect, but continues in possession, then he voluntarily assumes a new relation—that of bailee and trustee for the creditor, who has become the owner. That relation henceforth becomes the rule and the measure of his responsibility. If the property is burned, or lost, or perishes on his hands, without his gross neglect, the loss will fall, where in justice ft ought to fall, on the creditor, who is in fault. If he consumes it, or disposes of it to avoid the expense or inconvenience of its preservation, the contract does not thereby spring into a new existence, but he is responsible to the owner on the principles which govern the new relation he has assumed." The learned Justice then, speaking of controversies between the debtor and creditor concerning the sufficiency of the tender, says: "The controversy in all such cases is essentially this: the debtor alleges that the contract is performed, the debt satisfied, and the title to the things tendered changed to the creditor. The creditor denies the truth of these allegations. The

party against whom they (the allegations) are found is
the legal owner. If found against the debtor, he must
pay the debt in money, but he has not lost his goods; if
found against the creditor, his debt is paid, but the
property is his." See, also, Billings vs. Vanderbeck,
23 Barb., p. 546; Slingerland vs. Morse, 8 Johns., p.
474. This is undoubtedly the law in New York and
most of the States with respect to all obligations other
than for the payment of money. In this State the rule
has not, perhaps, been so clearly settled, and this
Chapter may have the effect to modify the law as con-
tained in the decisions of our Supreme Court. See
Reddington vs. Chase, 34 Cal., p. 666, and Perre vs.
Castro, 14 Cal., p. 519, and compare these cases with
Hayes vs. Josephi, 26 Cal., p. 535; Lamott vs. Butler,
18 Cal., p. 32; Curiac vs. Abadie, 25 Cal., p. 502; and
see, particularly, Ketchum vs. Crippen, 37 Cal., p. 223,
where the effect of a tender is discussed, but not de-
cided, and Perry vs. Castro (above cited) is commented
on disapprovingly; see, also, Gaven vs. Hagan, 15 Cal.,
p. 208. But whether the rules as laid down in this and
succeeding sections have or have not heretofore been
the law in this State with respect to all obligations
other than for the payment of money, they certainly
have not been so, until now, in any State with respect
to pecuniary obligations. The debtor has had hereto-
fore no power to rid himself of the debt without the
consent of the creditor. See Dixon vs. Clarke, 5 C. B.,
pp. 365-377; Waistell vs. Atkinson, 3 Bing., p. 290;
Kortright vs. Cady, 23 Barb., p. 490; 21 N. Y., p. 343.
And a tender has only operated to stop interest.-Hid-
den vs. Jordan, 39 Cal., p. 61, and California cases
cited above. See further on this subject Sec. 1500,
post, and note.

1486. An offer of partial performance is of no Offer of effect.

NOTE.-Dixon vs. Clark, 5 C. B., p. 365.

partial performance.

be made.

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

NOTE.-See Mahler vs. Newbaur, 32 Cal., p. 168; Myers vs. South F. R. Water Co., 14 Cal., p. 268; Osborne vs. Elliott, 1 Cal., p. 337; Barron vs. Frink, 30 Cal., p. 486; Muller vs. Eno, 14 N. Y., p. 597; Read vs. Goldring, 2 M. & Selw., p. 86; see Belshaw vs.

To whom to be made.

Where

offer may be made

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Bush, 11 C. B., p. 191; Kemp vs. Balls, 10 Exch., p.

607; Simpson vs. Eggington, id., p. 845.

1488. 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, then to a Notary Public.

NOTE.-Haldane vs. Johnson, 8 Exch., p. 689; Carman vs. Pultz, 21 N. Y., p. 547; Douglas vs. Patrick, 3 T. R., p. 683; Dawson vs. Ewing, 6 Serg. & R., p. 371; Kirton vs. Braithwaite, 1 M. & W., p. 310; Goodland vs. Blewith, 1 Camp., p. 477. The agent must have authority to receive payment in some shape.— Hargous vs. Lahens, 3 Sandf., p. 213; Bingham vs. Allport, 1 Nev. & M., p. 398; see Offley vs. Clay, 2 M. & G., p. 172; Kirton vs. Braithwaite, 1 M. & W., p. 310. Tender may be made to an agent instructed to collect by process of law (Crozer vs. Pilling, 4 B. & C., p. 26), even though forbidden to receive payment from the debtor.-Hatch vs. Hale, 15 Q. B., p. 10. "To a Notary Public."-This provision is new. It is intended to provide a mode of offer, fair alike to the debtor and to the creditor. A creditor might be absent from the State when the debt became due, and have no agent here. If, under such circumstances, the debtor could stop the running of interest by a formal offer, addressed to no particular person, it is plain that great injustice might be done.

1489. 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

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