
    W. E. Smith vs. D. E. Keels.
    
      Debtor and Creditor — Accord and Satisfaction — Consideration — Tender—Interest—Practice.
    A promise by a creditor that he will take Government bonds in satisfaction of the debt, is no defence to an action for the recovery of the debt, unless it be shown that the bonds were not only offered but were actually accepted by the creditor in pursuance of his promise. Such a promise, without more, is nudum pactum. A new consideration must be shown.
    An offer to pay money, or deliver chattels, to constitute a valid tender, must be unconditional.
    In an action on a promissory note, which by its terms bears interest, the jury must find the interest as well as the principal. If they find only the principal, the Judge, before accepting the verdict, may properly recommit the case with proper instructions as to their duty.
    BEFORE MOSES, J., AT SUMTER, SPRING TERM, 1868.
    The report of his Honor, the presiding Judge, is as follows :
    “ This was an action on a promissory note for $300, by defendant to plaintiff, dated October 6, 1860, at one day,— interest from date.
    
      “ The execution of the note was admitted, and plaintiff closed his case. The defendant submitted, and relied on as his defence, the following facts, which were proved :
    “In 1863, he being in the army, and having some twenty or twenty-four bales of cotton on hand, authorized his brother, Isaac Keels, Jr., to sell the cotton if he could pay his debts with the proceeds.
    “The brother had an offer of 20 cents for the cotton. He consulted the creditors; some agreed to take Confederate currency, and some bonds. One declined to come into the arrangement. The plaintiff agreed to take 8 per cent, bonds in payment of the note. The brother ' sold the cotton ; went to Charleston and purchased-the bonds at a premium; called on plaintiff; tendered the bonds. He at first declined; but finally got the note and calculated the interest. The whole amount of note and interest did not equal by four dollars the amount of the bonds which were tendered. (The bonds were of the denomination of $50 each.) The plaintiff refused to give the difference, and would not take the bonds, if the defendant’s agent required him to give it.
    “The agent would not deliver the bonds in payment unless the plaintiff would give the change, and the interview terminated. The plaintiff by his counsel submitted that the defence could not prevail—
    “ 1st. Because there was no consideration for the alleged promise.
    “2d. That the act of the defendant did not amount to payment, release, or satisfaction. That if the defendant had a remedy it must be by an action on the case or by way of discount, and no notice had been given.
    “3d. That it could not be supported as atender, because the true amount due was not offered. The sum offered requiring change, and the defendant by his agent demanding it as the condition on which the bonds offered should be received by plaintiff.
    “I did not regard the first objection as well taken, because I thought there was enough in the transaction as a whole to support the promise of plaintiff as founded on a valuable consideration.
    “ I, however, agreed with the plaintiff on the other points made, and instructed the jury that they could not avail the defendant, and that therefore the note stood without any defence which could affect it.
    “The jury returned into Court in the absence of plaintiff’s counsel (who had retired) with a verdict of $300 for the plaintiff. I brought to their attention the fact that they had omitted the interest. The foreman replied, ‘they did so purposely, as they did not intend to give the interest.’ I then said to them, ‘that if the plaintiff was entitled to a recovery, the interest followed the note, and constituted part of it; that they could not find a part and not the whole; that if they disregarded the ruling which I had made on the points of law submitted, they had the power to find for the defendant, but if for the plaintiff, he was entitled to the interest as well as the principal.’ The jury conferred, and the foreman answered, 'that their purpose was to be governed by the law,’ and found for the plaintiff the note and interest.”
    The defendant appealed, and now moved this Court for a new trial, on the grounds:
    1st. Because his Honor charged the jury that the defendant could not avail himself of the defence set up in this suit for two reasons. First, Because he could only'have done so by a notice of discount or a cross-action for damages for the failure to comply with the contract set up and proven ; and second, Because the defendant could take no sort of advantage of the contract for the settlement of the note; because he did not tender the exact amount of the debt in the bond. Both of which positions are respectfully submitted to be error.
    2d. Because the jury having rendered under the direction of the Court a verdict for the plaintiff of three hundred dollars, the Judge instructed the jury that they could not find for the plaintiff any less than the full amount of the principal and interest, and that they must find the interest also or give a verdict for the defendant; and further, that under the charge they were bound to find for the plaintiff.
    
      
      Moise, for appellant.
    
      J. S. 6r. Richardson,
    
    contra, cited 2 Pars, on Con. 644, 648, 1 Arcb. N. P. 219, 290; Wistar, Setter <& Price vs. Robinson, 2 Bail, 274; 3 Pars, on Con. 102; Byles on Bills, 295-6 ; State vs. Izard, 14 Rich. 214.
   The opinion of the Court was delivered by

iNGLis, A. J.

This Court is of opinion that the matter set up in defence in this case could, under no form of pleading, avail against the plaintiff’s action. It is, of course, not claimed that it constituted payment, for the Confederate bonds were not delivered by the defendant’s agent, much less accepted by the plaintiff. It need scarcely be said that it did not constitute a tender of payment, so as, upon bringing the rejected tender into Court at the trial, to arrest the interest and avoid costs, for a tender could only be in money, in the proper amount due, and without conditions annexed to its acceptance. (Wistar, Siter & Price vs. Robinson, 2 Bail, 274.) It was not accord and satisfaction, because the agreement was not executed by the defendant, and it was the performance, not the promise that was to be the satisfaction. Here there was not even an offer on the defendant’s part to execute the agreement, according to its terms. The plaintiff’s promise was to receive payment of the amount due him in Confederate bonds. The defendant offering bonds amounting in the aggregate to a sum exceeding the debt, made it a condition of delivering the bonds, that the plaintiff should pay him the difference in money, and, this being refused as no part of the original agreement, the accord failed to result in satisfaction, through the defendant’s fault. It is equally clear that it could not avail by way of discount or cross-action. For, so far as appears from the evidence, the plaintiff’s alleged promise, which must constitute the cause of action in such cross-suit, is without consideration. A creditor’s mere promise to receive from Ms debtor payment of bis demand any otherwise than in the full sum of good money, without more, is nudum pactum. It is not intimated in the testimony that the mode in which these bonds were to be procured was communicated to the plaintiff, there was, therefore, no inducement held out by the latter to the defendant to incur loss or risk of loss by the sale of his cotton for bonds, which could form such consideration. On this part of the case the defendant certainly has no cause for discontent with the charge of the Circuit Judge. But if this Court could, in this particular, concur in the opinion of the Court below, and a consideration to support the plaintiff’s undertaking could be found in the facts proved, yet there has been no breach of his agreement on the plaintiff’s part. His refusal of an offer made within a reasonable time after the agreement, to deliver the bonds of the amount due without other terms or conditions than were in the original agreement, would be necessary to constitute such breach. The fatal defect in this matter of defence, in whatever view, is that the arrangement between the parties failed of consummation through the defendant’s fault. There is no such error in the instructions of the presiding Judge as is alleged in the grounds of appeal.

The plaintiff having established by proof his cause of action, was entitled to recover, and so the jury found. Nothing in bar or abatement of his demand having been made out in defence, he was, of course, entitled as of right to recover according to the terms of the promissory note sued on. The payment of the legal interest on the principal sum from the date of the note until full satisfaction made, was as much a part of those terms by express stipulation as the payment of the principal sum itself, and the jury were not at liberty to distinguish between them, or to give him less than the full amount. The extent of the recovery is not, in such case, within the discretion of the jury. (Ryan vs. Baldrich, 3 McC. 498; Wistar, Siter & Price vs. Robinson, 2 Bail, 274.) If by mistake or design, they withhold the interest, a new trial will be ordered here as of course. The Circuit Judge, perceiving from the face of the record, that an error had clearly been committed in making up the verdict as first brought in, in the present case, did no more than his duty in calling the attention of the jury, in open Court, before the final reception and recording of their verdict, and while they were yet together in their places to this error, explaining to them the legal necessities resulting from their finding that the plaintiff was entitled to a recovery, and thus giving them an opportunity themselves to make the correction.

The motion for a new trial is dismissed.

DuNKIN, C. J., and Wardlaw, A. J., concurred.

Motion dismissed.  