
    Fleming against Gilbert.
    NEW-YORK,
    Nov. 1808.
    The time of the performance ofthecondition of a bond may be enlarged by a, parol agreement of the parties; and, where certain! acts were done by the obligor, amounting to a substantial, though not to a literal performance of the condition, it was he}d, that evidence of a parol agreement of the obligee, to •waive any further performance, was admissible.
    Where the cause of action is trifling, and the plaintiff recovers only nominal damages, the court will not set aside a verdict for the misdirection of the judge, if the plaintiff will elect to discontinue, without Costs.
    , THIS was an action of debt on a bond, dated the 3d[ November, 1805, to which there was the following condition : “ that if the said Elias Gilbert, his Heirs, &c. shall by the 1st day of January next, procure, or cause to be procured and delivered to the said J. F. or his heirs,' &c. free from, any expense or cost, a certain mortgage and bond, given by the said J. F. to one Isaiah Gilbert,' bearing date the 25th March, 1806, for the sum of 500 dollars, and also discharge the same from the record of the said county then, &c. The defendant pleaded the general issue, with notice of special matter, to be offered in evidence at the trial,
    The cause was tried at the Oneida circuit, on the 6th of June, 1808, before the Chief Justice. At the trial, the defendant offered to prove, that on the 20th December, 1806, he procured the bond and mortgage mentioned in the condition of the bond, on which the present action was brought, and on the same day tendered them to the plaintiff, and offered to do any act which he should require, for the further discharge of the bond and mortgage, and the plaintiff, not being advised what further acts were necessary to be done by the defendant, in order to discharge the bond and mortgage, agreed that the defendant might deposit the same with one Judson Curtiss, with whom the plaintiff agreed to deposit the bond given by the defendant, which were to be delivered to the respective parties, as soon as the defendant should perform such further directions as the plaintiff should give to the said Curtiss, relative to the discharge of the mortgage ; that in pursuance of this agreement, the defendant, on the 1st January 1807, deposited the bond and mortgage with Curtiss, but the plaintiff did not deposit the defendant’s bond with him, or give any further directions as to the bond qn4 .mortgage, - .
    
      The defendant further offered to prove, that the plaintiff agreed, on the 20th December, 1806, that the defendant might deposit the bond and mortgage with Curtiss, any time before the 1st June, 180Y ; that soon after the 3d November, 1806, and before any money was due on the mortgage, the plaintiff surrendered the deed he had received for the mortgaged premises from Isaiah Gilbert, (to whom the mortgage was given for the original consideration money,) to him, and that I. G. by request of the plaintiff, and pursuant to an agreement between the plaintiff and one Seely, for the sale of the premises, conveyed the premises to Seely, who preferred that mode of conveyance, to receiving a deed from the plaintiff; by which arrangement, made between all the parties, the mortgage was satisfied, and the plaintiff divested of all interest in the mortgaged premises, and could not be prejudiced by the bond and mortgage, which, however, were produced and offered to be delivered to the plaintiff at the trial. All this evidence was overruled by the judge, as matter of defence, but was allowed to go to the jury, in mitigation of damages.
    The jury, under the direction of the judge, found a verdict for the plaintiff, for six cents damages.
    A motion was made to set aside the verdict, and for a new trial.
    
      Gold, for the defendant.
    It was competent to the defendant to set up the parol agreement, to enlarge the time of performing the condition of the bond, or to waive its performance altogether. No objection, as to surprise, could be made, as the whole agreement was stated in the notice annexed to the plea. Where one party covenants to perform a certain thing, and the other stops him, or prevents the performance, it is sufficient; he need not proceed further. A tender to perform, in such case, is equivalent to a performance, and no action will lie for a breach of the covenant.
    
      The plaintiff, then, had no right to recover for the breach of a condition, the performance of which was waived by his own act, and from the non-performance of which, he-had suffered no damage whatever. There was a misdirection of the judge, and though the damages are trifling, there ought to be a new trial.
    In the case of Wilson v. Rastall, Lord Kenyon decided, that a new trial was never refused where there had been a misdirection or mistake of the judge.
    Platt, contra,
    insisted, that this was an attempt to defeat a bond by a mere parol and executory agreement,, which could never be done. Accord and satisfaction is the only bar. A mere accord, or executory agreement, is no bar. The plaintiff’s right of action on the bond, was perfect at law; and the special matter offered in evidence, Could only go in mitigation of damages. The notice of the agreement was also defective, and not according to the statute, which intended that such notices should be as explicit and certain as a special plea, so that the opposite party might come prepared to meet it. It did not appear that the mortgage had been cancelled as the act requires.
    . As the damages were nominal, the court will not grant a new trial, for it has been repeatedly decided, that where the cause of action is trivial, a second trial will not be granted.
    
    
      
      
         1 Esp. Cas. 35. See also Keating v. Price, 1 Johns. Cas. 22. 1 Vernon, 240. Vez. 376.
    
    
      
      
        Doug. 694. 1 Term. Rep. 638. 545.
    
    
      
       4 Term Rep. 753. But see ante, 239. Hyatt v. Wood.
      
    
    
      
      
        1 Bac. Abr. 43.
      
    
    
      
       1 Johns. Rep. 287. 3 Johns. Rep. 239. 1 Johns. Cases, 250—255.
    
   Thompson, J.

delivered the opinion of the court. The first question presented by this case is, whether the facts set forth in the notice, under the defendant’s plea, afford a yalid defence to the present suit. I am inclined to think that they do. The condition of the bond substantially is, that' the defendant should, by a certain day, procure and deliver to the plaintiff, a bond and mortgage which he had given to Isaiah Gilbert, and to discharge the same from the record. The defendant, within the time limited, did procure the bond and mortgage, and tendered, and offered them to the plaintiff; and did also offer to do whatever the plaintiff should require for the further discharge of the bond and mortgage, or the record thereof; but the plaintiff, not knowing at that time what was further necessary, did discharge the defendant from the strict and literal performance of the bond, and entered into- another engagement respecting the further proceedings. The plaintiff’s conduct can be viewed in no other light than as a waiver of a compliance with the condition of the bond, so far as it related to a discharge Of the mortgage on record ; and I see no infringement" of any rule or principle of law, in permitting parol evidence of such waiver. It is a sound principle, that he who prevents a thing being done, shall! not avail himself of the non-performance he has occasioned. Had nob the plaintiff dispensed with a further compliance with the condition of the bond, it is probable that the defendant would have taken measures to ascertain what steps were requisite to get the mortgage discharged of record, and would have literally complied with the condition of the bond. We find the rule above alluded to, recognised in ancient as well as in modern decisions. Thus, where the condition of a bond was to raise a mill, the obligor came to the obligee, and told him every thing was-ready to erect the mill, and asked him when he would have him come and put it up; the obligee answered, that he would not have it, and discharged him entirely of the erecting of the mill, and that was held sufficient to excuse him from the performance. (1 Roll. Abr. 453. pl. 5. Year Book, 2 Hen. VI. 37.)

So, also, in an action of covenant upon a charter-party, for demurrage, where it appeared that the ship-owner had waived all claim to demurrage, and consented that the time should be enlarged within which the cargo was to be discharged, Lord Kenyon said,, that if the matter had been properly pleaded, it would have been a good and legal defence against any claim for demurrage. (1 Esp. Cas. 35.)

Upon the same principle, it ia held that a tender and refusal, or waiver, (which must always rest in parol,) is equivalent to an actual performance; (1 Stra. 535. Doug. 661.) and in Keating v. Price, (1 Johns. Cas. 23.) this court allowed evidence of a parol agreement to enlarge ^t|le tjme 0f performance of a written contract.

' There was, accordingly, a misdirection at the trial, in overruling the testimony offered as a defence to the suit, but as the recovery is but nominal, and the only contest now is respecting the costs of the suit, it cannot be advisable that there should be a new trial, merely to give the defendant an opportunity to obtain, by a verdict, the costs already accrued, together with the costs of such new trial. It appears, therefore, to be proper that the motion for a new trial should be granted, with this proviso, that the plaintiff may elect, by the first day of the next term, to discontinue without costs.

The court has frequently decided, (ante, 241. and the cases there referred to,) that it would not, upon any strictly legal or technical objection, taken by the party moving, set aside a verdict or nonsuit, and grant a new trial, when there could be no other object in view than to obtain nominal damages. Two of the cases there referred to, were actions of trespass, but the same principle applies to this case ; and if the plaintiff will abandon the-verdict he has obtained, it cannot be fit or discreet to add the trouble and expense of a new trial, in order to give the defendant the benefit of a verdict for costs. The English courts exercise their discretion on the subject of new trials, under the same rules.

In Deerly v. Dutchess of Mazarine, (2 Salk. 646.) the court refused to grant a new trial, though the verdict was clearly against law, because they held it to be agreeable to the justice of the case.

In Macrow v. Hull, (1 Burr. 11.) the defendant obtained a verdict directly against evidence, and the strict point of law,' but the court would not interfere, because the trespass was trifling and frivolous, and the damages only nominal : And in another case," soon after, (1 Burr. 54.) Lord Mansfield held, that a new trial ought not to be granted to gratify litigious passions, upon every point of ■summum jus. These were cases , where the jury had disregarded the evidence, and the law arising on it, but the same reason and the same rule apply, where the misdirection of the judge had influenced the verdict. It is not the source from whence the mistake originates, but the equity of the verdict in the one case, and the trifling and vexatious object of the new trial in the other, that prevents the interference of the court.

In Edmundson v. Machell, (2 Term Rep. 4.) the court of K. B. decided that they would not grant a new trial on a technical objection, in point of law, to the direction of the judge, when they flaw justice had been done, though the misdirection in that instance, clearly swayed the jury. When a question on a misdirection arises, the first inquiry is, whether it was in a material point, and affected the merits of the case. The court always makes this inquiry, (3 East, 455. 8 East, 352.) and they are bound, in the exercise of a sound discretion, so to do, otherwise, there would be no end to new trials, and the remedy would be worse than the disease. “ Is the court necessarily to grant a new trial,” says Lord Ch. Eldon, (8 Vesey, jun. 169.) “ if material evidence was rejected ? or is it not at liberty, supposing it material, to consider in what degree it is sos and whether the materiality is such, that, because it was rejected, a new trial must be granted ?” We think, therefore, that a new trial ought not to be granted, if the plaintiff will waive the verdict.

Rule granted, conditionally.  