
    Conkling and others against King.
    A creditor received from his debtor the business note of a third person, upon the agreement that it should be full satisfaction of a larger debt, if paid at maturity, but not otherwise : Held, that the creditor, by receiving payment of the note when past due, waived the condition and discharged his original debtor.
    ' Appeal from the supreme court. The action was brought in the mayor’s court of the city of Albany. The complaint was in indebitatus assumpsit for goods, wares and merchandise. Plea general issue, with notice of set-off. Upon the trial before a referee these facts were found:
    On the 17th day of May, 1845, the defendant was indebted to the plaintiff, for goods sold and delivered, in the sum of $371.57. On that day the parties made an agreement by which the defendant was to pay the plaintiffs the sum of $85.69 in money, and procure for them a satisfactory note payable on the seventeenth day of November, then next, for $100 with interest, which the plaintiffs were to accept and receive in full satisfaction .and discharge of the said indebtedness, provided the note should be paid at its maturity, and not otherwise. The defendant, pursuant to the agreement at the time, paid the plaintiffs the $85.69 in money. On the 13th day of June, 1845, the defendant procured and soon after delivered to the plaintiffs a promissory note, made by F. Holden for the sum of $100, payable to the plaintiffs’ order on the seventeenth day of November, then next, with interest from the 17th day of May, 1845. The plaintiffs received and accepted the money and note made by Holden, pursuant to the terms of the agreement made between the parties. Holden did not pay the note or any part thereof, oh or before the 17th day of November, 1845. He paid to the plaintiffs, to apply on the note, the sum of $63, in February, 1846, and the remainder thereof in full, in May, then next, when the plaintiffs delivered the note as paid, to him. There was a valuable consideration for the note given by King to Holden, when the note was made.
    The referee reported in favor of the plaintiffs for the amount of the original debt, after crediting the payment made by the defendant, $85.69, and the $100 received upon the promissory note of Holden. Upon appeal this judgment was reversed and a new trial granted by the supreme court, at general term, in the third district, where the following opinion was delivered:
    Parker, J. The law is well established, that the acceptance, by a creditor, of the note of a third person in full satisfaction of an existing debt, is an extinguishment of the original indebtedness, though the note so taken is for a less sum than the whole debt. (20 Johns. Rep., 76; 1 Wend., 172; 14 id., 116; 21 id., 450; 22 id., 341; 5 T. R., 516.) The law is otherwise where the note of the debtor himself is taken. (8 Cowen, 79 ; 3 Wend., 68.)
    In this case the agreement was, that the note of. Holden should be taken in full satisfaction of the defendant’s indebtedness if paid at maturity, and not otherwise. It is claimed, that the note not being paid at maturity, the plaintiffs may recover for the whole original indebtedness. There is no doubt the plaintiffs had a right to avail themselves of this condition. The note not having been paid at maturity, the plaintiffs might have insisted that the contract was broken, and might have claimed the whole. But had they a right to retain the note against Holden, to urge payment upon it, and after receiving the full ^amount of it, to proceed then for the balance of the original demand against the defendant ? I think they had not. The note against Holden was not left with the plaintiffs as collateral security. It was designed to be in satisfaction ; and I think it was evidently the object of the parties, in making the condition, to protect the plaintiffs against the possibility of the note not being good. It could never have been intended that the delay of Holden for a few days, or longer, in paying the note, should authorize the plaintiffs to receive not only the money due on the note, but also to collect the balance of the debt compromised.
    By the agreement, non-payment at maturity would operate as a forfeiture. They had also the right to waive it; and I think their receiving a payment on the note after it was due, and subsequently asking and receiving payment of the balance due on the note, was a waiver of all claim of forfeiture on the score of time of payment. The cases are abundant to show that a forfeiture for non-payment at an appointed day, is waived by subsequent payment in full, whether it be on a lease, chattel mortgage, or other contract. (5 Cowen, 270; 1 Denio, 516; 3 id., 33; 1 Barb. Sup. C. Rep., 114; 2 id., 341; 5 id., 339; 2 Peters' Rep., 96; 2 Watts & Serg., 88; 2 Call's R., 553; 5 T. R., 553.) So a condition precedent is waived by proceeding to fulfill the contract. (14 Wend., 219; 1 Venn. Rep., 44; 1 Leigh's Nisi Prius, 632; 1 Conn. Rep., 79.)
    I think the principle recognized in these cases is applicable here ; and that the judgment of the Albany mayor’s court should be reversed, and a new trial awarded.
    The plaintiffs appealed to this court.
    
      Francis Bloodgood, for the appellants.
    The plaintiffs had the right to prescribe the terms of their' own contract. They knew when they needed the $100 on the Holden note. They contracted to release the debt of the defendant if the Holden note wás paid at maturity, but “not otherwise .” If new terms of compromise are claimed than those agreed on, they can be created only by the consent and agreement of the plaintiffs, and this is matter of fact to be proved. Suppose the Holden note was not paid at maturity, were the plaintiffs in that case by the contract to deliver it up to the defendant? If the defendant claims this, we say again it is matter of fact, and requires proof, which is matter for the referee or court below to find or consider, and not for this court. The Holden note, in case it was not paid at maturity, was no more to be returned to the defendant than the $85.69 in cash.
    Who was authorized to receive payment of the Holden note if not paid at maturity? No one? That would be absurd. Who then was authorized ? King ? He did not have the note, and there was no agreement that he should have it back, and he had transferred it unconditionally to the Conklings. What, then, is the position of the parties? King pays $85.69 in cash, and Holden’s note for $100, to the plaintiffs, and if the note is paid at maturity, it operates as an accord and satisfaction of the whole indebtedness of the defendant to the plaintiffs; but if not paid at maturity, was King to get back the $85.69 and the $100 note? Of course not. The $85.69 was paid and credited on the indebtedness of King immediately, and if the $100 was not paid at maturity, the plaintiffs held it as collateral to their debt, and were bound to credit payments on the note when made, on the defendant’s indebtedness, in the same manner as the $85.69 was credited.
    The authorities cited, in the opinion of the learned judge in the court below, are not applicable to this case. In those cases the waiver was implied by the receipt and payment of money between the parties to the contract claimed to be forfeited. Here the payment of the note was not the act of the defendant but of the maker. There was no contract between us and Holden for the compromise of the debt of the defendant. Holden paid us as the holders of the note, and as such (it being collateral security in our hands) we had a right to receive the money; or if by considering the contract with the defendant as forfeited we had ceased to be the owners of the note, we merely incurred a liability to him for the money had and received thereon, which he could offset to our claim on his original indebtedness. The decisions establish that the note of a third person for a portion of a debt, if received in satisfaction of the whole debt, is a valid agreement, not as a release or discharge of the balance of the indebtedness, but by way of accord and satisfaction. Yet no case has broached the doctrine that without the unequivocal consent and agreement of the party, as matter of fact, the remainder of the debt becomes extinguished. In this case not only is the accord and satisfaction of the plaintiffs wanting, but by the express terms of the compromise agreement, the balance of the debt is not to be discharged, if the Holden note is paid when past due. The agreement was only a conditional executory accord and satisfaction, the terms of which were not fulfilled by the defendant, and he is therefore not entitled to its benefits; the only effect of which is, the defendant is compelled to pay the whole instead of a, part of an admittedly honest and business debt; the whole consideration of which, the plaintiffs had lost and the defendant had received. The defendant loses nothing by his failure to fulfill the compromise agreement, only the plaintiffs are not bound to give him the balance of his indebtedness. The plaintiffs gain nothing by his failure, they merely receive their honest due, and not one farthing more. The law only compels us to be just, not to be generous.
    
      William D. White, for the respondent.
   Jewett, J.

It is not denied that if the plaintiffs had agreed to accept the money and the note against a third person absolutely in satisfaction of the debt, although the sum was less than the debt, the acceptance would have had the same effect as the acceptance of a horse or other chattel by the plaintiffs from the defendant would have had upon an agreement that the same should be taken as a satisfaction of the debt; and there can be no doubt that the acceptance of such a thing, in pursuance of such an agreement, would operate as a satisfaction of the whole debt, although it was of a less value than the amount of the debt. The ground for the recovery assumed by the plaintiffs, is, that the acceptance of the money and note did not operate as a satisfaction of their debt, at the time of the payment of the money and delivery of the note, but was to depend upon the performance of the condition upon which the note was received, namely: to pay it at maturity—that the note not being paid at maturity, the contract was broken, and the plaintiffs’ debt became unaffected, otherwise than by a reduction in amount by the sums received, which could only be applied by way of a set-off.

Conceding that the plaintiffs had, at the time the note became payable, a right to avail themselves of the non payment of it, and recover the whole sum due to them, after applying the moneys received as a set-off, I think it is a sufficient answer to say that they did not insist upon that right, but afterwards received the payment of the note and thereby dispensed with the strict performance of the condition. The plaintiffs had no right or interest in the note, or right to receive the money upon it except what they acquired by its receipt to operate in the event of payment as a satisfaction of the plaintiffs’ debt. By non-payment at maturity the plaintiffs debt remained unaffected by the agreement to compromise it, if they elected so to consider it; but they had right to dispense with payment at the time fixed upon and to receive it afterwards; and if they did, payment subsequently made with their consent would hav.e the same effect as though made at the precise time agreed upon that it should be made.

It is a sound maxim that any one may, at his pleasure, renounce the benefit of a stipulation or other right introduced entirely in his own favor. (Broom’s Maxims, 310.) A familiar instance of the application of this maxim occurs in connection with the law of bills of exchange. The general rule is, when a bill has been indorsed and the holder intends to sue any of the indorsers, it is incumbent on him first to demand payment from the acceptor on the day when the bill becomes due, and, in case of refusal, to give due notice thereof within a reasonable time to the indorser. The reason is that his undertaking to pay the -bill is not an absolute but a conditional undertaking, that is, in the event of a demand made on the acceptor (who is primarily liable) at the time when the bill becomes due, and notice given of refusal on his part or neglect to pay. As, however, the rule requiring demand and notice is introduced for the benefit of the party to whom such notice must be given, it may, in accordance with this maxim, be waived or dispensed with by that party. (1 Selwin, N. P., 10 ed., 358; Burgh v. Legge, 5 Meeson & Welsby, 418; Coddington v. Davis, 3 Denio, 16, affirmed on appeal 1 Comst., 186.)

And so a party may renounce a constitutional provision made for his own benefit. (Baker v. Braman, 6 Hill, 47; Embury v. Conner, 3 Comst., 511.)

The judgment of the supreme court should be affirmed.

Ruggles, Ch. J., and Johnson, J., expressed no opinion; all the other judges concurring,

Judgment awarding a new trial affirmed.  