
    S. N. Hoyt v. Hall, King, Clawson and Chamberlin.
    Charles Hoyt, the plaintiff’s assignor, by an agreement in writing, dated June 9, 1855, contracted to purchase of the defendants a steamboat, for $32,000, and pay $12,000 in cash on or before the 15th of said June, and the other $20,000 in four months, to be satisfactorily secured, and the defendants agreed to deliver to him a bill of sale when the cash payment was made.
    Failing to pay the $12,000 on the 15th, the defendants received from him on the 16th $12,000 cash, and four checks maturing on the 22d for $4,500 each, and left a bill of sale with J. J. S., accompanied by a written memorandum, directed to said J. J. S., and signed by all tire parties, which stated the consideration of tije sale to be $32,000, the receipt by the defendants of the $12,000 cash, and of the four checks, and that “ we all agree that the bill of sale of said boat to Charles Hoyt, shall be left in your hands, and to be delivered to said Charles Hoyt, when he shall have paid his said four checks for $18,000.”
    1. Held, that in an action to recover back the $12,000, on the ground that the plaintiff was at liberty to treat the said agreement as rescinded; it was necessary to prove a tender by the plaintiff'to the defendants before suit brought, of the amount due, and a refusal by the defendants to deliver a bill of sale of the boat.
    2. Held, also, that J. J. S. was not an agent of the defendants in any such sense, that a valid tender could be made to him, after the checks had matured and been protested. That it was clearly so on the facts of this case, as the defendants before the alleged tender (which was made on the 1st of August, 1855) had -notified J. J. S. not to receive any money if offered to him, but to refer the plaintiff to a third person who was named; which facts were communicated and reference given to the plaintiff, when the alleged tender was made.
    S. Held, also, that on such a state of facts, the plaintiff might seek the person to whom he had been so referred, or the defendants, at his election, and make a proper.tender to either; but not having made tender to either, the defendants were not in default, and the plaintiff could not recover in this action.
    4. Held, also, that the written memorandum of the 16th of June, 1855, contained no clauses of contract, which, by their terms or legal import, were in conflict with a separate agreement, that the §2,000 should be abated from the contract price, upon the condition that the four checks were paid at maturity, and upon that condition only; and that it was erroneous to reject evidence of a parol agreement to that effect.
    5. The written memorandum of the sixteenth of June, is to be regarded as an instruction to the depositary of the bill of sale, to deliver it on the payment of the checks at maturity, and neither authorized him to deliver the bill of sale if they were not paid at that time, nor constituted any evidence of an agreement by the parties that it should be delivered if such checks were not paid when due; and if in connection with the other papers it be regarded as expressing the whole agreement between the parties, then (in the absence of any parol proof respecting the abatement of §2,000, from the price of §32,000), this memorandum would not warrant the plaintiff to claim the bill of sale unless he paid the checks on the very day they matured. Per WOODRUFF, J.
    (Before Bosworth, Woodruff and Pierrepont, J. J.)
    Heard, February 11;
    decided, April 17, 1858.
    This action comes before the Court, upon a verdict which was taken, by the direction of the judge presiding at the trial, in favor of the plaintiff, for $13,663.66, subject to the opinion of the Court at General Term, upon a case to be made; the parties stipulating that the date from which interest is to be computed, and the amount, should be subject to adjustment by the Court, the judgment in the meantime to be suspended.
    It was tried before Mr. Justice Duer and a jury, in June, 1857.
    It was brought by Samuel N. Hoyt, as plaintiff, against Alfred Hall, William King, Daniel L. Clawson, and Elijah Chamberlin, as defendants, all of whom answered the complaint, except D. L. Clawson.
    ■ It was brought to recover back $12,000 (with the interest thereon) paid by one Charles Hoyt, on an agreement between him and the defendants, on account of the purchase by the former and the sale by the latter of the steamboat Thomas Hunt; on the allegation that Charles Hoyt and the plaintiff, as his assignee, had offered to perform, on behalf of said Charles Hoyt, all that, by said agreement, he was bound to do; and that the defendants had refused to deliver a bill of sale of the said steamboat to the plaintiff. The plaintiff claimed to have acquired by purchase and assignment from Charles Hoyt all his interest in said agreement, and in the $12,000 that had been paid by bfm . in part performance of the same, on his part.
    The original agreement for the purchase and sale of the boat was in writing; was signed by each defendant; was made, June 9th, 1855, and is as follows:
    “We, the sole owners of the steamboat Thomas Hunt, have this day sold said boat, as p. inventory annexed, for the sum of thirty-two thousand dollars, payable as follows: twelve thousand dollars in cash on or before the 15th day of June instant; twenty thousand dollars in four months, the last amount to be satisfactorily secured. Bill of sale to be prepared at once, and to be delivered to the said Charles Hoyt when the cash payment is made.
    “Hew York, June 9th, 1855.”
    Ho question arose upon the contents of the inventory, and for that reason they are not stated.
    John J. Stephens, cashier of the Mechanics’ Banking Association, testified, that on the 16th of June, 1855, Charles Hoyt, and the defendants, Clawson, King, and Chamberlin, left with him four checks, each dated that day, each made by Charles Hoyt & Son, drawn on the Bank of Hew York, payable, by their terms, on the 19th of said June, to the order of M. A. Crocker, each being for the sum of $4,500; also a certificate of the enrollment of said steamboat; also a bill of sale of said steamboat, signed by all the defendants, which purported to convey it to Charles Hoyt; and also a paper writing which, with the signatures thereto, reads thus, viz.:
    “ Cashier Mechanics’ Banking Association,
    “Dear Sir—We all agree to leave in your hands in escrow, a bill of sale of the steamboat Thomas Hunt, cons, of sale to Charles Hoyt ($32,000), of which we have received of him $12,000 in cash, and his four checks of this date, pay’l on the 19th inst., for $4,500 each, making the sum of $18,000, on the Bank of New York; and we all agree that the bill of sale of said boat to Charles Hoyt, shall be left in your hands, and to be delivered to said Charles Hoyt when he shall have paid his said four checks for $18,000, eighteen thousand dollars.
    “ (Signed)
    “ Charles Hoyt,
    “William King for Alfred Hall,
    William King,
    D. L. Clawson,
    E. Chamberlin.”
    He also testified that, on or about the 20th of June, 1855, he received- a written notice, dated on that day, signed “ Samuel N.
    Hoyt .per Jesse Hoyt,” to the effect, that the bill of sale of the steamboat Thomas Hunt, together with the said steamboat, and all the right, title and interest of Charles Hoyt therein, had been assigned to said Samuel N. Hoyt, as security for an advance of $12,000, and directing said Stephens not to deliver said bill of sale to Charles Hoyt, or to any other person, without the order of said Samuel N. Hoyt. The notice was produced in evidence.
    The plaintiff proved the execution of, and read in evidence, the following paper writing, vix.:
    “For a valuable consideration, I hereby assign, transfer and set over unto Samuel N. Hoyt, the steamboat Thomas Hunt, her tackle, apparel and furniture, together with all my right, title and interest therein, and in a certain contract for the purchase thereof dated June 9th, 1855, and in the consideration money paid therefor, and in all other things thereunto appertaining or belonging.
    “Dated at the city of New York, the twentieth day of June, 1855.
    “Charles Hoyt. [l. s.]
    “Sealed and delivered) in presence of J
    “William Bruorton.”
    
      Jesse Hoyt testified: That about a week after the 20th of June, 1855, he saw two of the defendants, Clawson and Hall, and told them Charles Hoyt had been taken ill and would not be ready at that time to meet the checks; he proposed to them to consider “whether they would, for a consideration, and for what, pay it (the $12,000) back and cancel the contract, as Charles Hoyt had been taken ill.” . . . “They said they thought they would prefer to perfect the contract; they said they were fair sort of men, and were not disposed to take advantage of circumstances;” that more than a week after that he met King in the street; “I asked him whether the proposition I had made to Clawson and Hall had been taken into consideration by the owners of the boat; he said that it had been, and that they should prefer to , perfect the contract.” ... “I said I would see my folks and advise him at an early day and have the matter settled up by paying what was due on the contract.” . . The latter part of July, about the 28th, “Kingsaid he would get all the owners of the boat together and meet at our office, on the Monday following, for the purpose of settling up the contract; the object, as stated at the time, was to pay what was due on the boat; I agreed to this.” On that Monday Bang called; said the parties could -not be got together on that day; and King “appointed Wednesday, the 1st of August, at 10 o’clock, at our office,” as the time and place when he would get them all together; that the plaintiff appeared there and the defendants did not; a messenger was sent three several times to find the defendants and see if they were coming; the third time he brought back a note reading thus:
    “Mr. Jesse Hott: Dear Sir—The parties interested in the steamboat prefer that all transaction in reference to the same should be done through their lawyer, to whom they refer you, Horace Clark, Esq., Wall street.
    “Tours, &c.,
    “August 2d, 1855. William King.”
    That this note, though dated on the second, was received on the first of August; that he then went to the office of Horace E. Clark; inquired for him; was told he was out of town, and it was not known when he would return to the city; that he then went to King’s store and inquired for him; was told he was gone to Bull’s Head; inquired for him there and was told he had been there and gone away; then went on board of the Thomas Hunt and was told he was not there; “ they did not know where he was, he was not there;” next went and drew $20,000, in gold, from the bank; placed it on Mr. Stevens’ desk, “and his attention was called to it; I said to him that I was ready to pay to him the four checks of Hoyt of $4,500, with interest, expenses of protest, or whatever might be due, and demanded the bill of sale of the boat.” . . “I demanded a bill of sale to Samuel N. Hoyt, the plaintiff; he said he had been notified by one or more of the parties not to deliver the bill of sale, but would refer me to Horace E. Clark; he said he acknowledged the tender, that the money was right as far as that went; that he would not receive the money; then I left; this was the same day, 1st August; I was acting on behalf of Samuel N. Hoyt, and at his request; I heard nothing more of the defendants until after the commencement of the action; I do not recollect that I made any demand for the $12,000.”
    It farther appeared that the money so tendered was drawn for that purpose out of the Merchants’ Exchange Bank on a check for $20,000, and after the tender had been made the money was returned, and the check was given back and canceled.
    John J. Stevens further testified: That he was instructed by the defendants, before the tender was made, “not to receive the money if it was offered, or to deliver the bill of sale, but to refer the parties, if they called, to Mr. Clark.”
    William King, one of the defendants, being sworn, the defendants offered to prove by him, “that the consideration of the acceptance of the checks for $18,000, in lieu of the $20,000 ” . . “ was the understanding that the checks were to be paid at maturity.” This was excluded, as were all questions that were put with a view to establish that fact by parol evidence, and to such decision the defendants excepted. In reference to the conversations between him and Jesse Hoyt, he testified thus: “ I said I wanted to perfect the bargain; I told him the
    arrangement would have to be made with all the owners; I was only one of them; I said I could not act for the others.”
    
      The defendants put in evidence the counterpart of the agreement of 9th June, 1855, which reads as follows:
    “I have this 9th June, 1855, purchased Wm. King, Alfred Hall, D. L. Clawson and E. Chamberlin, sole owners of steamboat Thomas Hunt, for the price or sum of thirty-two thousand dollars, pay! as follows: $12,000 in cash, on the 15 day June, inst., $20,000 in four months; the last sum to be satisfactorily secured.
    “Chables Hott.
    “Bill of sale to be delivered on 15 June, 1855, when the cash pay’t of $12,000 is made.”
    The defendants also proved, that at the expiration of four months, from the 9th of June, 1855 (which was after this suit was brought), they tendered a bill of sale and demanded payment of the sum due, according to the contract of that date.
    Daniel L. Clawson, another of the defendants, testified: that he had no notice that a tender was to be made to Mr. Stevens; “I told Stevens if the parties are not in town, to see Clark, there might be a difficulty about the earnings of the boat.” Alfred Hall, one of the defendants, testified thus: “I have no recollection of having had any conversation with Jesse Hoyt, at any time; I never authorized King to act for me; I am not apprised that it was intended to offer the money to Stevens; I heard of it twice after it was made; he did not act for me after the 20th of June.”
    This question was put to him:
    “Was there any agreement on your part, or on the part of your associates, to your knowledge, to rebate the $2,000, except in the event of the payment of the checks for $18,000, at their maturity? Objected to as irrelevant, and objection sustained by the judge. The defendants’ counsel excepted.”
    Horace E. Clark testified thus: “ On the first of August, 1855, I was at Saratoga Springs. A letter would have reached me in a few hours, and my partner, Mr. Rapallo, was as fully authorized as I was myself, to give any professional attention which might be necessary or desired in the matter. I left New York on the 29th July, and arrived at Saratoga on the 80th, and remained at the United States Hotel, till the 17th of August.”
    
      The plaintiff admitted on the trial of this action, “that on the 20th day of June, 1855, the defendants tendered a bill of sale to Charles Hoyt, and demanded the payment of the checks, and that the said C. Hoyt did not accept or pay.”
    The testimony being closed, the counsel for the defendants submitted the following points in writing; and moved to dismiss the complaint.
    I. The contract of ninth June was not absolutely superseded by the arrangement made on the sixteenth of June, when the checks were deposited with Stevens. The instrument of sixteenth June stated the price to be $32,000, which could not be the case if the arrangement of ninth June had been superseded.
    II. The payment of the checks deposited with Stevens, was to be a substitute for the $20,000 remaining due upon the contract, provided the checks were paid at maturity. The expression “ when the checks are paid,” means when they are paid according to the tenor and effect, i. e., at maturity.
    III. If the checks were not paid at maturity, the defendants had a right to disregard the arrangement of sixteenth June, and fall back on the original contract, by putting Charles Hoyt in default by protesting the checks, or by refusing to receive payment of them after maturity; after the plaintiff was in default in the payment of the checks, the purchaser could only rescind the contract of ninth June, by offering to pay or secure the $20,000, according to the original contract.
    IV. The demand of a bill of sale to Samuel N. Hoyt, on the tender he made to Stevens, rendered the tender ineffectual.
    V. Stevens’ authority to receive the money and deliver the bill of sale, had ceased on August 1st.
    VI. The checks were not payable to Stevens at the Mechanics’
    Banking Association, but were payable at the banks on which they were drawn; and not being paid there, the amount of them should have been tendered to the parties in interest (the defendants).
    VII. There is no evidence that either party ever rescinded the contract of ninth June; no demand of the money sued for was ever made, or notice of the rescission of the contract given by plaintiff.
    VIH. No joint liability on the part of the defendants is proved.
    
      The Court again refused to dismiss the complaint, and the defendants’ counsel excepted.
    The defendants’ counsel here offered to go to the jury on the question, whether the tender was made in good faith to Stevens. The Court decided that the defendants were not entitled on the evidence to go to the jury on that question; to which decision the counsel for the defendants excepted.
    And thereupon a verdict was taken, by direction of the judge, for the plaintiff, for $13,663.66, subject to the opinion of the Court at the General Term, upon a case to be made, the parties stipulating that the date from which the interest is to be computed, and the amount, shall be subject to adjustment by the Court; the judgment in the meantime to be suspénded.”
    
      C. Van Santvoord, for the plaintiff, on moving for judgment on the verdict, insisted:
    I. The contract for sale of the boat Thomas Hunt, of the 9th June, 1855, as it originally stood, was superseded by the contract as altered and modified by the agreement of the sixteenth June, witnessed by the execution of the instrument in writing by Charles Hoyt and the defendants, declaring the terms upon which the bill of sale of the boat was to be delivered to Charles Hoyt, and after such alteration and modification, and the part execution of the contract as altered and modified, the contract of ninth June, as modified, was the only contract in force between Charles Hoyt and the defendants containing the terms and conditions of the sale. (See Patmore v. Colburn, 1 C. M. & R., 65.)
    II. By the contract for the sale of the entire steamboat to Charles Hoyt, for an entire consideration to-be paid by him therefor to the defendants, the undertaking of Charles Hoyt was to the defendants jointly; and the undertaking of the defendants, and their consequent liability for the performance of their part of the agreement was joint. (1 Parsons on Contracts, pp. 11, 13, 14, 19; Hatsall v. Griffith, 4 Tyr. Ex. R., 487. The remarks of lord Lyndhurst, C. B., and Park, B., throughout the case; Lane v. Drinkwater, 5 Tyr., 40, 53 ; Ib. C. M. & R., 599, Byrne v. Fitzhugh, 5 Tyr., 54; Story on Part., 455, as to liability of part owners, in case of contract.)'
    The liabiltyof the defendants being joint, they were mutually responsible for each other, and the default or refusal of one would be as effectual a breach of the agreement on their part as if all had concurred. (See Platt on Covenants, 116.)
    HI. The refusal of the defendant King, in concert with the other defendants, contained in his note of the 1st of August, 1855 (dated the 2d, but received the 1st), and his verbal message by the clerk of Mr. Hoyt at the time of handing the note for Mr. Hoyt to the clerk; and the instructions by the defendant Clawson and others of the defendants to the cashier, Stevens, not to receive the money if it was offered, or to deliver the bill of sale, but to refer the parties to their counsel, Clark; and the refusal of Stevens, pursuant to such instructions, on the tender being made, to receive the money or deliver the bill of sale, was a wrongful breach of- the agreement of the defendants, that the bill of sale of the steamboat, with the consequent right to her possession and control, should be delivered when the four checks, amounting (together) to $18,000, should have been paid; and this agreement of the defendants being the sole consideration for which the $12,000 was paid and the four checks were given, the plaintiff, as assignee of Charles Hoyt, upon such breach, became entitled to recover the. money paid, on the ground of the total failure of the consideration. (Raymond v. Bearnard, 12 Johns., 274; Murray v. Richards, 1 Wend., 58; Main v. King, 8 Barb., 535; Weaver v. Bently, 1 Caines, 47 ; Eno v. Woodworth, 4 Comst, 249; Colville v. Besly, 2 Denio, 142; Griggs v. Austin, 3 Pick., 22; Carter v. Carter, 14 Pick., 424; Wright v. Newton, 2 C. M. & R., 124.)
    The readiness and offer of the plaintiff to pay the amount of the checks, with the interest and expenses, or- whatever was due on the contract, and the prevention or hindrance of the performance, were in law equivalent to a performance of the condition on which a bill of sale was to be delivered. (Chitty on Contracts, ed. 1844, 737, and cases cited in note 10; Hotham v. East India Co., 1 T. R., 638 ; Smith v. Wilson, 8 East., 443; Alton v. Westbrook, 1 Wils., 115; Bull v. Price, 7 Bing., 237; Horford v. Wilson, 1 Taunt., 12.)
    IV. The consideration of the agreement of the defendants in the contract for the sale of the steamboat as modified, that the bill of sale should be delivered when the four checks amounting (together) to $18,000 should have been paid, was the payment down of $12,000, by Charles Hoyt, his delivering the four . checks payable on the nineteenth (which matured on the twenty-second of June, and not before that date, Bowen v. Newell, 4 Seld., 190; S. C., 3 Kern., 290), and his agreement by necessary implication from the contract, that the bill of sale should be withheld until the four checks should be paid. And it was not a condition upon which the obligation of the defendants, that the bill of sale should be delivered, depended, that the four checks should be paid at their maturity, but the liability on the checks was in the nature of an independent agreement, the breach of which by non-payment at their maturity might subject the maker to an action for principal and interest, but which could not impair or affect the right to the bill of sale- under the contract in this case when the checks with the interest and expenses should have been fully paid or tendered. (2 Parsons on Contracts, pp. 36 to 40; Dox v. Dey, 3 Wend. R., 356, 360; Dawson v. Dyer, 5 Barnw. and Ald., 584; Scott v. Parker, 1 Ad. and Ellis N. C., 809, 813; Stavers v. Curling, 3 Bing. N. C., 355.)
    V. Possibly on the non-payment of the checks at maturity, the defendants after the maturity of the checks on the twenty-second June, on demanding payment and tendering the bill of sale on payment, on refusal of the payment might on offering to return the money paid and the checks, have treated the contract as rescinded by the default of Charles Hoyt. (Pothier on Contract of Sale, by L. S. Cushing, p. 289, sec. 6.) But to allow them to do so without having returned or offering to return the money or the checks, would be manifestly unjust and against good conscience.
    YI. As to the tender.
    1. The tender was properly made to the cashier (Stevens) as the holder of the checks, made payable by indorsement, to his order and to whom they had been delivered by the defendants for collection and from whose custody they had not been withdrawn by the defendants. And the proof of the tender to Stevens under the allegation in that behalf in the complaint was admissible, and the tender was sufficient, especially after the notice to the defendant King, of the plaintiff’s readiness to pay what was due on the contract, and the refusal of King, in concurrence with the other defendants, to meet the plaintiff to close up the matter of the contract, which refusal stands wholly unjustified by any matter of defence alleged in the answer, or of which this plaintiff had any notice upon the supposition that the defendants were not discharged from their agreement that the bill of sale of the steamboat should be delivered on or after the payment of the checks by the omission to pay the checks at maturity. (See Moffat v. Parsons, 5 Taunt., 307.)
    The previous notice of readiness and offer to King, was as effectual as if made to all the defendants. (3 Com. Dig. L., Title Condition, 9, p. 120; 5 Com. Dig., 366, Title Pleader, c., 71; Douglass v. Patrick, 3 Term R., 683; Crowder v. Shee, 1 Camp., 437.)
    2. The demand of Stevens of a bill of sale to Samuel N. Hoyt, in the connection in which it was used, could mean only a demand of a delivery of the bill of sale to Samuel N. Hoyt, the plaintiff, and not the execution of a bill of sale to Samuel N. Hoyt by Stevens, nor of a bill of sale executed by the defendants to Samuel N. Hoyt, unless the defendants had left one with Stevens, so executed, or in blank. That Stevens, as well as the witness, understood the demand to refer to the bill of sale which had been left with Stevens by the defendants, appears from the answer of Stevens as stated by the witness.
    Besides, the refusal to receive the money or to deliver the bill of sale, was in pursuance of instructions broad enough to dispense with any tender.
    VII. The evidence offered for the ostensible purpose of giving a different construction to the writing executed by the defendants, declaring the terms and conditions upon which the bill of sale was to be delivered to Charles Hoyt, from that to be collected from the instrument itself, as to whether conditional or not on payment of the checks at maturity or joint or several to which exceptions were taken was properly rejected. (Schermerhorn v. Vanderheyden, 1 Johns., 139; Allen v. Jaquish, 21 Wend., 628; and cases cited under point H.)
    VTH. The evidence offered to be proved by Alfred Hall, to the exclusion of which an exception was taken, was inadmissible and irrelevant under the pleadings in the case.
    IX. The offer of the defendants to go to the jury on the question, whether the tender to Stevens was made in good faith, was not exactly consistent with the defendants’ other objections, and was properly overruled, and the exception thereto not well taken. After the evidence of the instructions of the defendants to Stevens, not to receive the money, the proof of tender was perhaps not material, and there was not sufficient foundation, for the offer; in the evidence. (See People v. Cook, Court of Appeals, April, 1853; Selden’s note of Cases, No. 2, page 29.)
    X. The plaintiff under the circumstances was not bound to go to the defendants’ lawyer, nor to await his return to the city, and after the refusal of the defendants to meet the plaintiff to close up the contract, by receiving the money due thereon, after notice to the defendant King, of the plaintiff’s readiness to pay the money, and after notice of the instructions to Stevens, not to receive the money or deliver the bill of sale, while the defendants were retaining the possession and continuing the use of the steamboat, which they were employing in the transportation of freight and passengers, the plaintiff was entitled to treat the contract as rescinded by the default and misconduct of the defendants, and bring this action for the money paid, on the ground of the total failure of the consideration, for which it. was paid, without further demand.
    The defendants themselves refusing to perform the contract, they ought not to be permitted to set it up as the pretext for holding the money advanced, while retaining the possession and use of the boat. (See Raymond v. Bearnard, 12 John., 274, 275, and cases cited under point III.)
    The objection that no special demand, previous to the bringing of the suit, was made for the money, is not alleged in the answer, and would not avail, if it had been alleged. (See case above cited, and Dill. v. Inhabitants of Wareham,, 7 Metcalf, 438, at pages 447, 448.)
    
      Geo. Wood & O. A. Rapallo for the defendants.
    I. The money sought to be recovered in this action was paid to the defendants in part performance of the agreement dated June 9th, 1855, as modified by the memorandum of June 16th, 1855, signed by the defendants and Charles Hoyt.
    II. The only modification of the agreement of June 9th, .containecL in the memorandum of June 16th, was the deposit of the bill of sale in the hands of Stevens, with authority to him to deliver it to Charles Hoyt, on the payment of the cheeks for $18,000 due nineteenth of June, instead of securing the $20,000 at four months.
    IH. The authority to deliver the bill of sale to Charles Hoyt uiohe7i he shall have paid his four checks,” was, in legal effect, an authority to deliver it on his paying the, checks, at maturity, according to their tenor.
    IV. The payment of the four checks at maturity was of the essence of the contract, and on their being regularly presented at bank and protested for non-payment on the nineteenth of June, and again on the twenty-second of June, the purchaser (Charles Hoyt) was in default, the arrangement of June 16th was at an end, and the authority and function of Mr. Stevens ceased.
    V. If there were any doubt on this point, the default of the purchaser and his abandonment of the arrangement of June 16th, is placed beyond all controversy by the tender of the bill of sale and the demand of payment of the checks, and the refusal of the purchaser to accept and pay on the twentieth of June.
    VI. The plaintiff failed to show any agreement on the part of the defendants to waive this abandonment by the purchaser of the arrangement of June 16th. ' The only evidence on the subject is, in saying “that they preferred to perfect the contract." By this they undoubtedly meant the contract of June 9th.
    VH. Even if there were evidence tending to show such a waiver, the question of waiver should have been submitted to the jury.
    VHI. As bearing upon this question of waiver, the testimony offered by the defendants as to the consideration for the arrangement of June 16th, should have been admitted.
    IX. The arrangement of June 16th was not an independent contract, which wholly superseded the agreement of June 9th, but was an arrangement whereby the bill of sale was to be delivered on the payment, at maturity, of the checks for $18,000, in place of securing the $20,000 at four months.
    The consideration of the rebate of $2,000, was the payment of the money on June 19th instead of October 16th. The intent and consideration of the arrangement of June 16th appear from the papers.
    If they do not so appear, and are material, the Court erred in excluding parol evidence to establish them.
    X. The alleged right of action of the plaintiff is based on the contract of June 9th. That is the only contract assigned to him by Charles Hoyt.
    If the arrangement,of June 16th entirely superseded the contract of June 9th, the assignment of the latter contract to the plaintiff could give him no right of action against the defendant. If it did not so supersede it, then, on the failure of the purchaser to pay the checks at maturity, the defendant had the right to require security for the payment of the $20,000 in four months under the original contract. The original price ($32,000) is retained in the memorandum of June 16th.
    XI. Assuming that the arrangement of the sixteenth of June was a substitute for the contract of June 9th; that the assignment to the plaintiff of the contract of June 9th conveyed to him the rights of Charles Hoyt under the arrangement of June 16th, and that after Charles Hoyt had made default in paying the four checks, the defendants agreed to allow further time for the payment of the $18,000, Stevens, the cashier, had no authority to accept a tender after the maturity and protest of the checks, and such tender ought to have been made to the defendants personally, or to some one authorized by them to accept it. More especially Stevens had no right to deliver a bill of sale to Samuel H. Hoyt, as demanded.
    XII. There was no rescission by Charles Hoyt or the plaintiff of the agreement of sale under which the money sued for was paid, and no demand for the return of the purchase money after such rescission; without such rescission and demand this action cannot be maintained.
    XHI. The Court erred in refusing to allow the defendants to go to the jury on the question of the good faith of the tender to Stevens.
    XIV. The defendants were not proved to be in default in any respect. They tendered the bill of sale on the twentieth of June, and again on the sixteenth of October, after the four months had expired. They have never refused to comply with their part of the contract, and the judgment should be in their favor.
   By the Court.

Bosworth, J.

—One of the questions presented by this case, is this: Were the offer of Jesse Hoyt, on the 1st of August, 1855, to pay to Mr. Stevens the four checks of $4,500 each, with interest, and expenses of protest, or whatever might be due; and a cotemporaneous demand from Stevens of a bill of sale, acts, which can be regarded as being, in law, a tender or offer to pay to the defendants and a demand of them, of a bill of sale? The question is not whether the $12,000, advanced as part payment has been forfeited, nor whether the plaintiff yet has it in his power to compel a transfer of the boat to be made, on paying or offering to pay what may be due.

But the practical question is, has he done enough to put himself in a position to say, that the defendants have refused to perform the contract on their part, and given him a right to treat the contract as rescinded, and to recover back the $12,000 which had been paid ?

By the contract of June 9th, 1855, the defendants agreed to sell for $32,000, of which $12,000 was to be paid in cash, on or before the fifteenth of that month, and the other $20,000 in four months, and its payment satisfactorily secured. That being done, a bill of sale was to be delivered on payment of the $12,000 on the said fifteenth of June.

On the 16th of June, 1855, Charles Hoyt, the purchaser, having failed to perform the agreement of the ninth of June, the defendants received of him $12,000 cash, and his four checks of that date for $4,500, each, dated the sixteenth and payable on the nineteenth, and deposited with Mr. Stevens a bill of sale of the boat, and agreed with Hoyt that Stevens might deliver to him the bill of sale when Hoyt should have “paid his said four checks for $18,000, eighteen thousand dollars.”

These checks would mature on the twenty-second, and of course Hoyt, by paying eighteen thousand dollars, within six days from the sixteenth of June, would be entitled to a delivery of the bill of sale, and would have a right to demand it, in that event, of Stevens.

The bill of sale was put in the hands of Stevens, under the agreement of the sixteenth of June, to be delivered on payment of the checks at their maturity. Hoyt having failed to pay the checks when due, Stevens did not, by force of that agreement become the agent of either party, in such sense that a subsequent tender of payment could be made to him by the plaintiff, or by Charles Hoyt, or that a subsequent demand of payment could be made of him by the defendants. His agency was limited to the delivery of a bill of sale on payment of the checks at maturity. They not being then paid, he could not enlarge the time of payment, nor accept payment on a day subsequent, nor was he an agent of the defendants, in such sense that he could affect them by his acts done with reference to a new ór altered state of facts.

If any doubt as to this point could exist, had nothing subsequently occurred to affect his power to receive payment and thereby bind the defendants, that doubt is removed, because they had directed him before the tender was made not to receive payment, but if offered, to refer the person offering it to Horace E. Clark, and the person who made the tender relied upon, was so informed, at the time the tender was made.

It was then the duty of the plaintiff either to have made a tender to Mr. Clark or to the defendants. Hone was made to either.

Hothing was tendered to either defendant, nor was any act or acts done, of a character equivalent in effect, to an offer to pay the checks to the defendants.

The plaintiff, to' succeed in this action, must establish that he offered to pay the defendants all that was due, and demanded of them a bill of sale, before suit brought. He must do this before he can be exonerated from taking the boat and making full payment, or place himself in a position to have the right-to elect to treat the contract as abandoned, and recover back the $12,000 paid.

Clear proof of the defendants’ default is an essential prerequisite to such a right of action. (Green v. Green, 9 Cow, 46 to 51.)

Even if it be conceded that payment of $18,000 and interest, and expenses of protest, could have been rightfully made on the first of August, and that no more need then have been paid to entitle the plaintiff to a bill of sale, ana that a refusal then, to receive that amount and thereupon to deliver a bill of sale, would have enabled the plaintiff to maintain this action, no valid tender of payment was made, nor was any demand of a bill of sale made, which can affect the defendants.

Mr. Stevens was not authorized to deliver the bill of sale, except upon the condition that the four checks were paid when due. That the plaintiff might not be misled, he was notified that Stevens had been forbidden to receive payment. He made the tender he did make with that knowledge. He was referred to H. F. Clark. He then had his election to seek him, and treat him as the representative of the defendants who had referred to him, or to seek the defendants personally.

The defendants were not bound to seek the plaintiff. Even if they had waived strict performance as to time, they had not waived substantial performance, in fact, nor agreed to rescind. To put an end to the contract, and to the plaintiff’s obligation as assignee of the purchaser, to pay the balance due, the defendants must be shown to have refused to receive what was due and to deliver a bill of sale. This is not shown. They have not refused to do either; nor have they done any thing which dispensed with the necessity of an offer to pay them, and of demanding of them a bill of sale before suit brought. (Ellis v. Hoskins, 14 J. R., 363 ; Green v. Green, 9 Cow., 46; Fuller v. Hubbard, 6 Cow., 13; Fuller v. Williams, 7 Cow., 53.)

The written memorandum of the sixteenth of June states that the boat was sold for $32,000, “of which” the defendants had “received of him (Charles Hoyt) $12,000 in cash, and his four checks of this date, payable on the nineteenth instant, for $4,500, each,” &c.

Were this the only written agreement on the subject, it would not import that the cash and checks would be full payment; for it states expressly that the price is $32,000, “of which” $30,000 had been received in the manner specified. How and when the other $2,000 was to be paid might be shown by parol, if the agreement respecting it rested wholly in parol. But a previous writing states that it was originally agreed that, for the ■ $2,000, and for the amount of the checks also, a credit of four months was to be given on the payment being satisfactorily secured. In the absence of any admission in the pleadings to the contrary, it would not be an unnatural inference that, on payment of the $18,000 when the checks matured, the other $2,000 was to be paid at the end of the four months originally stipulated, and that security for its payment was waived.

But the answer admits that payment of the $18,000, provided it was paid when the checks were due, was to be full payment. But it was to be full payment only in the event it was then paid. The defendants offered to show that such was the actual agreement. The evidence was rejected as being in conflict with the terms or clear legal import of the agreement, evidenced by the written memorandum, of the sixteenth of June.

What has been said, is sufficient to show that there is nothing in the terms or legal import of that paper, in conflict with the fact offered to be proved.

As proof of such a fact would not vary the terms or meaning of any agreement which that paper imports; .the evidence offered was improperly rejected.

The verdict must be set aside,and a new trial granted, with costs to abide the event.

Woodruff, J.

—First. If the letter of instructions given by the parties to the cashier of the Mechanics’ Banking Association were to be regarded as the agreement of the sixteenth day of June mentioned in the complaint,-and as such to be construed, as so far covering the whole subject matter, as to preclude parol proof of any terms or conditions not inserted therein; and, therefore, to be held to express the whole agreement of that date in modification of the previous written contract, it might still be read in connection with such previous contract of the ninth of June, and also in connection with the four checks described therein, and when so read, it does not, in my opinion, entitle Charles Hoyt or his assignee to have the bill of sale delivered, unless the checks, mentioned therein, are paid at maturity.

Read in connection with the checks, its import is that the bill of sale is to be delivered to Charles Hoyt when he shall have paid his four checks, which are “payable on the 19th instant.” According to the very tenor of the instrument, it was upon payment of sums therein declared to be payable on a day named, that delivery was to be made. The omission to pay on the day expressed for the payment, or at the end of the days of grace, was a clear breach of the agreement, and a violation of the condition upon which the bill of sale should be delivered.

Read in connection with the agreement of the ninth of June (if it be assumed as already suggested to embrace the whole agreement), it imports that a sale of the boat had been made for $32,000, of which $12,000 had been paid, and that the defendants had agreed that instead of $20,000, satisfactorily secured by notes payable at four months, they would accept $18,000, payable on the nineteenth instant. As the defendants, under either agreement, were to have ample security, it is possible that time was made the very consideration and inducement to the relinquishment of the $2,000. Under both agreements, the defendants were entitled to $12,000 cash. Under both, the payment of the residue was to be satisfactorily secured (i. e., in the one case by notes satisfactory to the defendants, in the other by a deposit of the bill of sale in escrow); so that there remained no other ground or motive for the acceptance of the $18,000 instead of the $20,000, but the actual payment within the time specified, viz., on the nineteenth.

And this is, I think, the true intent and meaning of the parties as disclosed by the two papers read together; and this appears to me as plainly apparent, as it would be, had the memorandum only directed the cashier to deliver the bill of sale, “if he (Hoyt) shall pay his said four checks according to their tenor.” Payment of a check or note according to its tenor, is what is meant when parties speak of, and provide for the payment of a note or check running to maturity, according to the ordinary use of language.

In my opinion, therefore, the fair and proper construction of the memorandum of the sixteenth of June, forbids the claim asserted by the plaintiff, that he was entitled to have the steamboat for the further payment of $18,000 only, whenever it might suit his convenience or pleasure to pay it, and whether at the maturity of the checks or not. On the contrary, I think that upon the non-payment of the checks the defendants were exonerated from any obligation to receive less than the full consideration, $32,000, mentioned in the memorandum as the consideration of the sale; and that the privilege of an abatement from the price which Hoyt had obtained was gone; not as a forfeiture, for no right was lost, he was bound for the whole already, but he, by not paying the checks, failed to realize the benefit of a sacrifice which the defendants had consented to make, in consideration of an almost immediate payment, viz.: on the nineteenth instant.

2. But that letter of instructions is not to be deemed or taken as the agreement between the parties in the absolute sense above assumed, not only because it makes no provision respecting the residue of the consideration as suggested by my brother BosWORTH (with whom I fully concur), and therefore, does not on its face purport to cover the whole subject matter of the contract, but also because it is not so set up, declared upon nor treated by the pleadings on either side; and its purpose and object, appearing as well in the pleadings, as upon the face of the paper itself, were to furnish instructions to Mr. Stevens (the cashier), and exhibit the conditions on which he might deliver the bill of sale. An agreement is stated in the complaint, which according to the plaintiff’s allegations covered all the particulars of the modification of the previous contract, and it is alleged that in pursuance of that" agreement Charles Hoyt paid $12,000 and gave his checks, and the defendants delivered a bill of sale together with an instrument in writing signed by them and Hoyt to the cashier.

The answer admits the delivery of the bill of sale and instrument to the cashier, but avers that the agreement m pursuance of which, this was done, embraced terms and conditions other than those alleged in- the complaint.

Under such an issue, made by express and specific averments in the pleadings, I think it was competent for the defendants to show what was the real agreement between the parties, in pursuance of which the written instructions to the cashier were given, and that the proofs offered did not contravene any stipulation which the parties had reduced to writing, even for the limited object for which those instructions to the cashier were given.

The instrument delivered to the cashier contained all that was necessary for his guidance, and was delivered for his instruction; while that and the bill of sale were left as security to Mr. Hoyt that he should receive the bill of sale if the checks were paid: whether anything and what had been agreed in respect to the residue of the $32,000; and what was to follow, if the checks were not paid according to their tenor, are matters in respect to which the instrument is silent, and the purpose which it was to serve did not require that it should contain anything on those subjects. Mr. Stevens’ duty was defined, and that was all that was material to the object of the paper.

I concur in the opinion that the verdict should be set aside and a new trial granted, with costs to abide the Court.

Ordered accordingly.

Pierrepont, ¿I., dissented.  