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.

NOTE.-Subd. 1.-Franchot vs. Leach, 5 Cow., p. 506; Robinson vs. Bachelder, 4 N. H., p. 40; Wyman vs. Winslow, 2 Fairf., p. 398.

Subd. 2.-Hunter vs. Le Conte, 6 Cow., p. 728.

Subd. 3.-"Cannot with reasonable diligence be found within this State" (Smith vs. Smith, 2 Hill, p. 351; qualifying S. C., 25 Wend., p. 405.) "Within a reasonable distance from his residence," etc. This provision is perhaps new.-See Smith vs. Smith, 25 Wend., p. 405; 2 Hill, p. 351. "If he evades the debtor at his residence" (Judd vs. Ensign, 6 Barb., p. 258; see Smith vs. Smith,) "or place of business." Persons may do business in who reside out of this State, and this clause provides for that class.

1490. 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.

NOTE." At that time within reasonable hours" (see Dixon vs. Clark, 5 C. B., pp. 365-378; Startup vs. Macdonald, 2 M. and G., p. 395), "and not before" (Mitchell vs. Cook, 29 Barb., p. 343). In Maryland, however, a tender before the day of all that would be due upon the day, interest included, is valid.-McHard vs. Whetcroft, 3 Harr. and McH., p. 85. "Nor afterwards."-Livingston vs. Harrison, 2 E. D. Smith, p. 197; Poole vs. Tumbridge, 2 M. and W., p. 223; Hume vs. Peploe, 8 East, p. 168; see Kortright vs. Cady, 21 N. Y., p. 343.

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

NOTE.-Jones vs. Gibbons, 8 Exch., p. 922.

tion after

1492. Where delay in performance is capable of compensaexact and entire compensation, and time has not been delay in expressly declared to be of the essence of the obliga

perform

ance.

Offer to be

made in

tion, 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 meantime.

1493.

NOTE." 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." This.clause obviates the difficulties which constantly arise in determining whether time is of the essence of a contract or not. The provision that “an offer of performance, accompanied with an offer of such compensation, may be made at any time after it is due," is also new. But as such tender is permitted by statute after an action has been commenced, it clearly ought to be allowed before any litigation is had, to stop interest and avoid costs. Undoubtedly it is not allowed by the common law (Poole vs. Tumbridge, 2 M. and W., p. 223; Hume vs. Peploe, 8 East, p. 168), but the Judges acknowledged the hardship of the law on this point. In Connecticut, this rule has become law through usage.-Tracy vs. Strong, 2 Conn., p. 659.

An offer of performance must be made in good faith. good faith, and in such manner as is most likely, under the circumstances, to benefit the creditor.

Conditional offer.

NOTE.-Good faith is manifestly essential.

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

NOTE." Offer must be free from any conditions." Brooklyn Bank vs. Degrauw, 23 Wend., p. 342; Wood vs. Hitchcock, 20 id., p. 47; Eddy vs. O'Hara, 14 id., p. 221. An offer conditioned upon a receipt in full (Loring vs. Cook, 3 Pick., p. 48; Thayer vs. Brackett, 12 Mass., p. 450; Finch vs. Miller, 5 C. B., p. 428), or a receipt of any kind (Laing vs. Meader, 1 Carr. & P., p. 257; Griffith vs. Hodges, id., p. 419; Ryder vs. Townsend, 7 Dowl. & Ryl., p. 119; see Wood vs. Hitchcock, 20 Wend., p. 47) being given; or upon the amount tendered being accepted in full of all or any demands (Wood vs. Hitchcock, 20 Wend., p. 47; Strong vs. Harvey, 3 Bing., p. 304) is bad at common law. It is proposed, however, to sanction a demand for a receipt.

See Sec. 1499. "Which the creditor is not, on his part,
bound to perform."-Bevans vs. Rees, 5 M. & W., p.
306. Thus, an offer of more than is due, conditioned
upon the creditor taking out of it the amount which he
claims to be due, is good (Ib.; Dean vs. James, 4 B. &
Ad., p. 546; see Hubbard vs. Chenango Bank, 8 Cow.,
p. 100), if the creditor is not required to make change,
for that he is not bound to do.-Id.; Betterbee vs. Davis,
3 Camp., p. 71. Where the creditor is bound by law to
give a release upon payment, an offer conditioned upon
his doing so is good.-Saunders vs. Frost, 5 Pick., pp.
260-270. So a party to a negotiable instrument may
require its surrender upon payment (Wilder vs. Seelye,
8 Barb., p. 408), unless the holder has other claims
upon it.-Hargous vs. Lahens, 3 Sandf., p. 213.

willingness

1495. An offer of performance is of no effect if Ability and the person making it is not able and willing to perform essential. according to the offer.

NOTE.-All the precedents assume this to be essential. Ability, however, and not readiness, is the true test. If a debtor knows that his creditor will not accept performance, he should not be required to prepare anything for delivery, at a useless cost of time and trouble.

1496. 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.

NOTE.-This is an innovation upon the common law, as far as obligations for the payment of money (Bakeman vs. Pooler, 15 Wend., p. 637; Hornby vs. Cramer, 12 How. Pr., p. 491; Finch vs. Brook, 1 Bing. N. C., p. 253), or for the delivery of a written instrument (see Brooklyn Bank vs. Degrauw, 23 Wend., p. 342), are concerned. But the former rule seems useless. In respect to bulky articles, this section is in conformity with the common law.-Slingerland vs. Morse, 8 Johns., p. 474; Myers vs. Davis, 26 Barb., p. 367; Coit vs. Houston, 3 Johns. Cas., p. 243.

Production be deliv

of thing to

ered not necessary.

Thing,

offered to

separate.

1497. A thing, when offered by way of performauce, must not be mixed with other things from which be kept it cannot be separated immediately and without difficulty.

NOTE.-Hamilton vs. Ganyard, 34 Barb., p. 204; Betterbee vs. Davis, 3 Camp., p. 71; Bates vs. Churchill,

Performance of condition precedent.

Written receipts.

Extinction

of

obligation.

32 Maine, p. 31; Leballister vs. Nash, 24 id., p. 316; Wyman vs. Winslow, 2 Fairf., p. 398; Veazy vs. Harmony, 7 Greenl., p. 91; Barney vs. Bliss, 1 D. Chipm., p. 399.

1498. 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. NOTE.-Green vs. Wells & Co., 2 Cal., p. 584. See Sec. 1439, ante, and notes.

1499. A debtor has a right to require from his creditor a written receipt for any property delivered in performance of his obligation.

NOTE. This is a new provision. See Sec. 1494, and notes.

1500. An obligation for the payment of money is pecuniary 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.

Objections

to mode of offer.

NOTE. This is contrary to the former law upon this subject, which made a tender operative only so far as to stop interest. The same rule has been applied to obligations for the delivery of deeds and other instruments (Brooklyn Bank vs. Degrauw, 23 Wend., p. 342), but this has been wisely overruled (Des Arts vs. Leggett, 16 N. Y., p. 582.) The provisions of this section have long been the law, in substance, in Louisiana and France. It would seem to be all that creditors can reasonably ask. The common law compels a debtor to keep the money which he owes, at his own risk. This is often an inconvenience, and sometimes a positive loss to him. See note to Sec. 1485.

1501. 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.

NOTE.-Carman vs. Pultz, 21 N. Y., p. 547; Kernochan vs. Bowery Ins. Co., 17 id., p. 428; Bumstead vs.

Dividend Mut. Ins. Co., 12 id., p. 81. Insuperable
objections are not waived by silence.-Friess vs. Rider,
24 N. Y., p. 367; Mitchell vs. Cook, 29 Barb., p. 353.

thing

1502. The title to a thing duly offered in perform- Title to ance of an obligation passes to the creditor, if the offered. debtor at the time signifies his intention to that effect.

NOTE.-Des Arts vs. Leggett, 16 N. Y.,
p. 582;
Lamb vs. Lathrop, 13 Wend., p. 95; Rix vs. Strong, 1
Root, p. 55; see Smith vs. Loomis, 7 Conn., p. 110.
Heretofore this rule did not apply to money, but that
was because a tender did not extinguish a pecuniary
debt. Section 1500 removes the ground of this distinc-
tion. See Lamott vs. Butler, 18 Cal., p. 32, where B
sells and delivers to C certain personal property, with
an agreement then made that C is to resell and rede-
liver, upon B's executing and delivering to C certain
notes, and B subsequently tenders these notes and
demands the property, and C refuses to take the notes
or surrender the property, and the whole transaction on
the part of C was a fraud, his intention being to get
hold of and keep the property (see the facts of the case,
18 Cal., p. 35, and as stated in Butler vs. Collins, 12
Cal. p. 457; Collins vs. Butler, 14 Cal., p. 223); Held:
that the tender of the notes did not vest the ownership
thereof in C, and that he cannot sue on them; that the
fraud takes the case out of the rule that a tender of
specific personal property vests the title thereto in the
tenderee. See, also, note to Sec. 1485.

thing

1503. The person offering a thing, other than Custody of money, by way of performance, must, if he means to offered. 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.

1504.

NOTE.-Sheldon vs. Skinner, 4 Wend., p. 525. These rules seem reasonable, though they are not established (nor denied) by adjudged cases.

Effect of accessories

offer on

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 inter- obligation.

of