
    
      Annis Baker v. Samuel Gasque and W. B. Rowell.
    
    A creditor is not bound, in law, to accept a part of his or lier debt.
    Nothing short of an offer to fully perform the contract, evidenced by a tender of every thing the plaintiff is entitled to, is sufficient.
    The law of tender is, that the defendant must take care, at his peril, to tender enough, and if be does not, and if the plaintiff replies, that there is more due than is tendered, which is traversed, the issue will be against the defendant, and it will be the duty of the jury to assess for the plaintiff the sum due on the promise; and if it be not covered by the money tendered, he will have judgment for the balance.
    
      Before Evans, J. at Marion, Spring Term, 1848.
    This was an action on the joint and several note of the defendants. It appeared from the evidence that Gasque was the principal debtor, and Rowell was his security; Gasque did not defend the suit, and there was a reference to the Clerk as to him. Gasque was now insolvent, and the defendant, Rowell, alone defended the case. The plea was payment of $200, part of the note, made by Gasque. The evidence was as follows:
    Godbold, the sheriff, said that the plaintiff told him, that Gasque sent her $200 by her son, but she would not receive it; her son had the money, and returned it to Gasque. She said she was not in the habit of receiving a part of her debt.
    James Baker said his mother gave him the note to try and collect it. He called on Gasque for the whole of it; Gasque did not pay, but promised to do so. A few days after, Gasque called at his house, and gave him $200 to give to his mother; he told her he had the money; she refused to take it, saying she would not receive a part without all; he returned the money to Gasque. This witness said he went to Rowell by his mother’s direction, to inquire what he wished done, whether he wished the note sued; he said no, he thought Gasque could and would pay without suit.
    Gasque said James Baker called on him for payment; a few days after he called on the plaintiff, but she was not at home ; he then went to James Baker’s and gave him $200 for his mother • soon after this he was at Mrs. Baker’s again ; she said if the $200 was any advantage to him, he might keep it, and told her son, who was present, to return the money, (this was denied by James Baker,) which was done.
    The first question was whether this was a payment. The Circuit Judge told the jury the plaintiff was not bound, in law, to receive a part, and unless they believed, from the evidence, that she accepted it as a payment, and let Gasque have the money on a new contract, it was no payment. The second question was whether the refusal of Mrs. Baker, to accept ^jg money from the principal, was a discharge to the security. He was of opinion it did not, and so instructed the jury. They found for the plaintiff the whole amount of the note.
    Fordley’s case,
    The defendant moved the Court of Appeals for a new trial, on the following grounds, viz:
    1. Because his Honor erred in instructing the jury that the payment of two hundred dollars, by Samuel Gasque, the principal, to James Baker, the son of plaintiff, was not a payment on the note, inasmuch as she did not receive it and credit the note with the amount: whereas it was in proof by plaintiff’s and defendant’s witnesses, that, the said J. Baker had been authorized to collect the note, and had received the $200, on account of it, from said Gasque.
    2. Because his Honor erred in charging the jury that the defendant was not discharged from the payment of the $200 which had been made by Gasque, the principal, when it was in plaintiff’s hands, and allowed by her to pass into the hands of the principal, by which defendant was bound to pay the whole amount, on account of the insolvency of the principal.
    3. Because, upon the proof, the defendant was entitled to be discharged from the payment of two hundred dollars on the note, which it was proved were in the hands and control of the plaintiff, who allowed the principal, Gasque, to take it back and retain it, to the prejudice of defendant, who was surety, without his consent.
    
      Harllee, for the motion.
    Boylston, contra.
   O’Neall, J.

delivered the opinion of the Court.

The whole argument, on the part of the defendant, assumes as a fact, that which was denied by the plaintiff, and which, after being passed upon by the jury, and a verdict found for the plaintiff, must be regarded as not sustained by the proof; it is that James Baker was the agent of the plaintiff to collect the note, in whole or in part, and that he received the $200, in payment. This being thus excluded, by the verdict, it follows, that there is nothing in the defendant’s grounds of appeal. That a creditor is not bound, in Jaw, to accept a part of his or her debt, is, I think, too clear to be questioned. The authorities referred to, by Mr. Boylston, if there were any room for a question, certainly put .the matter at rest. For if a tender of part be not good, neither can a payment of part be. But it is an abuse of terms to call that a payment, which the party does not accept. The 88th case from Leonard, was where a contract is in the alternative to £20, or deliver 10 kine, — the Court held, to sustain performance pleaded, both the money and the kine should be tendered. This was for the obvious reason, that the plaintiff, had an election to take one or the other, and hence to absolve the defendant, both must have been offered. That case abundantly proves, that nothing short of an offer to fully perform the contract, evidenced by a tender of every thing the plaintiff is entitled to, is enough. In Boyden v. Moore, administrator., Parsons, Chief Justice, states the law as I have always understood, and never supposed it to be doubted, “ that the defendant must take care, at his peril, to tender enough, and if he does not, and if the plaintiff replies, that there is more due than is tendered, which is traversed, the issue will be against the defendant, and it will be the duty of the jury to assess for the plaintiff, the sum due on the promise ; and if it be not covered by the money tendered, he will have judgment for the balance.”

5 Mass. Rep. 369.

The motion is dismissed.

Richardson, J. and Evans, J. concurred.  