Curson against Monteiro.
^ an(1 M en. teret! int0 an agreement by deed,in which fhat he'ivasre-sponsible for oifacconnurf s>and as>sn-edcertain property in payment; butM wasneverthe-lessto offer other terms of payment in six months, to elect toTe! ceive or not, in fifteen days thereafter. At theexpiralion of six months, M offered his own note for 1,000 dollars, payable in four years C did not malts his election, but sent the assignment whí refused’ recoive it. C afterwards brought an gumpsit'for8" the money for becomere^ sPor>sible- R was held that by the agreement the assignment was an extinguishment of the original contract; that the words •of the agreement, as to the offer of other terms, did not import a condition, but constituted a separate covenant; and that M having made an offer of other terms within the stipulated time, and no election being made by C, M was cot liable on the covenant.
_ „ . , This was an action or assumpsit tor money, the payment of which, by one Bonaventure Sire, had .been guaranteed by the defendant. The cause was.tried at the New-Yorlc Sittings, the 12th December, 1806, before Mr. , Justice Livingston, when a verdict was taken, by consent, for the plaintiffs, for 11,973 dollars, subject to the opinion of the court, on the following case.
On the 10th of December, 1800, the defendant wrote to the plaintiff that he would guarantee the payment of , . the premiums which the plaintiff might become accpunt- and paid the premiums. Sire afterwards became insolable for in behalf of Bonaventure Sire, in respect to insurances on his ship Maria, on a certain voyage. The plaintiff accordingly caused insurance to be effected at Baltimore, for the voyage, on account of Bonaventure Sire, yent, and the defendant, in his correspondence with the plaintiff, acknowledged that he had made himself responsible. On the 23d November, 1802, an agreement was entered into by deed, between the plaintiff and defendant, by which the defendant admitted that he was indebted to the plaintiff in 9,259 dollars 25 cents, for his responsibility for Sire, and assigned and transferred to the plaintiff, in discharge of the said debt, the whole of what the defendant was. entitled to receive of the proceeds of a certain schooner called the Resolution, and the plaintiff was to have and receive the same in payment. But the , ,. , , defendant was, nevertheless, obliged at any time within six months thereafter, to offer other terms of settlement and payment of the said debt, in lieu of the said assign¡ment, to be made in writing and delivered ; and if the plaintiff should not within fifteen days thereafter, elect J
*309to receive the offer of siich other terms so to be made, an(j g-ve not¡ce 0f such election, and return the assignment to the defendant with the moneys received thereon, it was then to be deemed an absolute election to keep the ' assignment, as a full, absolute, and complete payment and discharge of all demands of the plaintiff against the defendant; and the defendant, in such case, was released from all demands, &.c.
On the' 20th May^ 1803, the defendant wrote to the' plaintiff, and made the offer of other terms of settlement; viz. his own note for 1,000 dollars, payable in four years, in full satisfaction of the debt. On the 25th of June, 1803, the plaintiff requested some further time to make his election, and the defendant gave him twenty-one days from that time, to return or accept the agreement.
On the 13th July, 1803, the plaintiff sent the assignment of the 23d November, 1802, to the defendant, informing him that he had no objection to hold It as a collateral security, but not as a release from all further demands; and on the 18th of July the defendant returned it, saying, that as the plaintiff had not given him notice of any election, he returned the assignment to him as being his property, and that he considered himself as completely released.
Upon this case it was agreed by the counsel, that if the court should be of opinion that the plaintiff was entitled to recover in this form of action, judgment was to be entered upon the verdict, but that if the plaintiff cannot recover in any form of action, judgment was to be given for the defendant; and that if the plaintiff may recover upon the deed, though not in the present form, of action, then a judgment of nonsuit was to be entered.
This cause was argued at the last term by Harison for the plaintiff, and Pendleton and Hoffman for the defendant.
*310
Harison.
By the agreement, Ihe defendant was obliged, within six months, to offer other terms of settlement, by which the plaintiff was to be secured. Now this was a condition precedent, and until it was performed, the agreement could not be absolute and conclusive between the parties. This was not intended as a mere illusory agreement, but as something substantial and beneficial. The offer to pay 1,000 dollars in four years, could never have been deemed a performance of the condition. The object of the agreement was to obtain a valuable and Iona fide security, otherwise it was not to be binding. The offer of the defendant was a mere evasion of the condition. It may perhaps be contended, that as the debt was acknowledged by writing under seal, that the simple contract is merged in the deed. Here the deed intended as a security was not given by the party himself, but by a stranger. But a mere agreement to give a security does not destroy the original contract. Where a par'ty, having a simple contract, agreed to take a bond with sureties, which was not delivered, and the defendant pleaded that the bond was executed and ready to be delivered, the court permitted the plaintiff to enter up judgment on the simple contract, on condition of releasing the bond. The agreement in the present case, was not intended to be binding at all events, so as to put an end to the original contract’; but was made to depend on the performance of a certain condition, and the agreement having been returned, the plaintiff has aright to resort to the original contract.
Pendleton and Hoffman, contra.
.By the terms of the agreement, the plaintiff clearly accepted the assignment, in full discharge of the original debt. There is a perfect accord and satisfaction. A promise to pay a less sum, it is true, is no satisfaction; but where there is an actual acceptance of the agreement, it is a complete satisfaetion.*311
Though a Jess sum cannot be a Satisfaction of A greater,
yet if a less suin be accepted, and the obligee execute a release under seal, it is an extinguishment of the debt.
Rut it is said that th’e agreement contains a condition to be performed by the defendant. The defendant undertakes to do a certain thing in a certain time. There are no words used which import a condition. It is a simple, independent covenant contained in the same deed,' the nonperformance of which does not destroy the agreement; but merely renders the party liable to an action.The covenant was for the benefit of the plaintiff; if the defendant had not offered other terms of payment within six months, he could not have called on the plaintiffto account for the assignment, on the ground that the agreement was void. The action of assumpsit, will not lie.The proper remedy of the plaintiff, is for a breach ofthe covenant. The offer was certainly within the terms of the agreement. There is no evidence of any fraud; nor does it appear but that the defendant offered all that was in his power to do. He was to make such offer as he thought proper, and it was intended to create an option in favour of the plaintiff, to accept or refuse the offer. As the plaintiff made no election, the agreement became final and conclusive between the parties.
Harison, in reply.
The agreement admits that the defendant was responsible ’for 9,259 dollars 25 cents, and that the assignment was in payment; but the word nevertheless, which follows, imports a condition. It is an agreement to accept a satisfaction upon condition that the' defendant offer another satisfaction within six months; and this offer was to be something which would be either' a payment, or security for the debt. — An offer of ten' dollars, or a thousand, could not have been regarded as a compliance with the condition*
Thompson, J.
This action of assumpsit being foundfid upon the original undertaking of the defendant, the principal question in the case is, whether that contract was not extinguished by the agreement of the 23d of November, 1802, This agreement was by deed; taking it together, must, I think, be considered asan ex-tinguishment of the simple contract. The assignuient of the proceeds of the schooner Resolution is declared by the parties to be in discharge of the prior demand, and it is accepted accordingly. It was considered as terms of settlement and payment, for the agreement provides that the defendant shall, within six months, offer other terms of settlement, and if the plaintiff did not accept of them, he was bound by the assigment, as an absolute discharge and release to the defendant. The case of Knight v. Cox, which is cited in Fitch v. Sutton, ( 5 East, 231.) shows that a release will operate, though it be accompanied with.a new promise, and the party will be put to his remedy on such new undertaking.
If the defendant, within the time prescribed, did, according to, the covenant, offer other terms to the plaintiff, and the plaintiff did not accept of them, there cart be no doubt'that he is concluded by the assignment; the original contract is released and gone. Whether such offer was made, would more properly arise in a suit OH the covenant, because, admitting it not to have been made, there is still no ground for the present suit. The simple contract was absolutely extinguished, and the assignment was not made and accepted upon condition to be void, if the defendant did not make the offer. That is not the language of the agreement. The plaintiff was at all events to hold the assignment, unless surrendered at his own election, and he could only hold it upon the terms upon which it was accepted, which were in discharge of the prior debt.
*312The only remedy, if any, which the plaintiff has, is for a breach of covenant by the defendant, in not making the offer; and whether the offer actually made, was or was not a performance of the covenant, is another, question, which the parties have chosen to submit to the court in this action. Upon this point I am also with the defendant. — He was, within six months, to offer for the consideration of the plaintiff, other terms ofsettlement and payment; and the plaintifffaad fifteen days to elect whether he would receive them in lieu of the assignment* To say that an offer of less than the' whole amount of the debt could not be made, is construing the covenant too strictly. The terms of settlement to be offered were not specified, or defined in the agreement, and it is impossible for the court to say what specific terms were intended. It is clear the parties had not defined or understood them. They were to be left in the first instance to the discretion of the defendant, and the plaintiff had a given time to consider them. — They must of course have been terms undefined and uncertain in the contemplation of the parties. Ail that we can require, is, that the defendant should, bona fide, make an offer of terms valuable and certain, and not an offer of terms absurd and frivolous, for that would be in fraud of the covenantand it cannot, I think, be denied that the terms offered were of the former description. They were treated as such by the plaintiff, for time was asked to deliberate whether or not to accept them. By the agreement the defendant was discharged from his personal responsibility¿ and the plaintiff had agreed to accept, instead of it, a specified-fund, uncertain as to its product and amount. The terms offered were a personal responsibility to the amount of 1,000 dollars, and it is impossible for the court to say that this-offer was, under these circumstances, a fraudulent evasion of the covenant.
*313I am accordingly of opinion, that the defendant is entitled to judgment.
Kent, Ch. J. was of the same opinion.
SpenceR, J. not having heard the argument, gave no opinion.
Judgment for the