Sweet v. Titus. sum of $89.29, in other words, covered the proceeds of the butter, less expenses and commissions. The evidence fully warranted these results, and the only question, therefore, which we are called upon to consider is, the refusal of the referee to regard the check as a payment, pro tanto, of the plaintiff's claim. It seems to be well settled that the delivery of a check is not a payment, unless there be an agreement to that effect, or unless the drawer in consequence of some laches on the part of the holder has sustained loss or injury in respect thereof, and then only pro tanto. (Syracuse, Binghamton and New York R. R. Co. v. Collins, 3 Lansing, 29, and cases cited. Hill v. Beebe, 13 N. Y., 566. Bradford v. Fox, 38 id., 289.) The creditor is not bound to accept a check, even if it be for the entire amount of his claim. He is not bound to receive money. He may, although it be sent to him, refuse to accept it, and leave the debtor to his plea of tender, when sued for the claim. He may do this even though having received the money he keeps it subject to the order of the debtor. The latter must withdraw the money and plead a tender, and thus save himself from the costs of the controversy. (The Kingston Bank v. Gay, 19 Barb., 459.) While the creditor has his rights, the debtor is not without corresponding advantages. If he choose to absolve himself from a debt due, he must tender the amount of it; and having done so, if the creditor refuse to receive it, the latter must take the consequences of his obstinacy. It may be that a court of equity would compel the creditor, in a proper case therefor, to discharge an incumbrance; but that is not this case. Applying these principles to the case in hand, the conclusion must be that the referee was correct in holding that the check was not a payment. The plaintiff refused to accept it, and held it subject to the order of the defendants. They suffered no loss by that circumstance. The evidence shows that it was good 67 330 67h 204 67 330 73h 291 Manton v. Poole. from the time it was given until the time of the trial. If the defendants wished to make it absolute they should have demanded its return, and if the plaintiff had refused to comply, the finding that it was accepted would have been warranted. They did not do so. There is nothing in the form of the complaint which militates against this proposition. The averments therein are general, of certain causes of actions, and no credit is given for the check received. The plaintiff's letter, written for him by his attorney, contemplates a credit for it, provided the defendants acquiesced in his claims; but they did not do so, and he made no use of the check, as already suggested. The result of these considerations must be, for the reasons assigned, that the judgment should be affirmed. Ordered accordingly, with costs. [FIRST DEPARTMENT, GENERAL TERM at New York, May 3, 1875. Davis, Brady and Daniels, Justices.] MANTON vs. POOLE and others. To entitle a party to an attachment, a reasonably plain case must be made out. The affidavit should contain a statement of the facts out of which the claim A mere recital of facts, without a direct statement of the existence of any of them, is insufficient. Where the action is to recover damages for the breach of an agreement, so much of the agreement as contains the obligation relied upon as the foundation of the action should be plainly and positively disclosed in the affidavit for an attachment; and it should then be shown, with equal directness, in what respect there has been a failure of performance, and how, and to what extent, the plaintiff has been injured, by means of it. Manton v. Poole. A PPEAL from an order denying a motion to set aside an attachment. (S. C., briefly reported, 4 Hun, 638.) James C. Carter, for the appellants. John S. Washburn, for the respondent. By the Court, DANIELS, J. In order to entitle a party to an attachment for the seizure of his debtor's property, a reasonably plain case is required to be made out. And an indispensable circumstance to make it out is the existence of a cause of action. For that purpose the Code has required that it shall appear by affidavit that a cause of action exists against the defendant, specifying the amount of the claim, and the grounds thereof, (§ 229.) The affidavit made by the plaintiff, on which the attachment in this case was issued, wholly failed to comply with this requirement. It did not appear from it that any cause of action existed in his favor. To show that, the affidavit should have contained a statement of the facts out of which the claim was supposed to have arisen. They were the grounds which the statute provides shall be stated. And without them it cannot appear that a cause of action exists in the plaintiff's favor. For that purpose it would be clearly insufficient for the party to state, merely, that he has a cause of action. That would not show its existence, as the law provides it shall be disclosed before an attachment can be issued in the action. It would simply be the plaintiff's conclusion. And nothing more than that was set forth in the plaintiff's affidavit. It did not show that the defendants had entered into a covenant, or agreement with him, which they had failed to perform, or anything from which it could be logically inferred that any assignable amount of damages had been sustained by any such non-performance. Manton v. Poole. The affidavit set forth, only by way of recital, that the defendants were indebted to the plaintiff in the sum of $20,000, and that the grounds of the claim were the breach and violation by the said defendants of the covenants, agreements and conditions on their part to be kept and performed, contained in a certain agreement and patent license, duly made on or about the 26th day of August, in writing, under seal of that date, duly executed by and between deponent, this plaintiff, as party of the first part thereto, and said defendants as parties. of the second part thereto, and particularly the breach and violation by said defendants of their covenant and agreement therein contained, to use all proper and reasonable efforts, by the employment of agents and canvassers, and by advertising, to make sale of the boilers in the territory, in and as in said agreement and license specified and provided, and to make the patent therein specified remunerative to this plaintiff, said party of the first part thereto, to the damage of the said plaintiff, said sum of $20,000. And that was all that was stated for the purpose of showing the grounds of the claim, or the existence of a cause of action. It may all be true except the claim of the amount mentioned, and yet the plaintiff be entitled to recover nothing. It was a mere recital of facts without a direct statement of the existence of any of them, beyond the execution of the agreement referred to. That it contained any covenant or stipulation, by which the defendants really bound themselves to do anything for the plaintiff was not set forth as a matter of fact; nor in what respects they had failed to perform, if any such failure actually existed. In a case of this description, so much of the agreement as contains the obligation relied upon as the foundation of the action, should be plainly and positively disclosed; and it should then be shown with equal directness in what respect there has been a failure of performance, and how and to what extent the plaintiff Germania Bank v. Distler. has been injured by means of it. Nothing less than that can adequately protect defendants against unjust or oppressive seizure of their property by attachment. The facts must be stated, and they should appear to warrant the conclusion, or claim, deduced from them. A statement of its amount, without facts justifying the conclusion, does not comply with what the Code has required in this respect. The plaintiff's statements would have just as well sustained a claim of $100,000 as one of $20,000. The facts in the affidavit should appear to sustain the claim made upon them, before the plaintiff can be entitled to an attachment upon it. That was not the state of the case made in this action; and for that reason the order should be reversed, with ten dollars costs, besides disbursements, and an order made setting aside the attachment, with ten dollars costs of motion. Order reversed. [FIRST DEPARTMENT, GENERAL TERM at New York, May 3, 1875. Davis, Brady and Daniels, Justices.] GERMANIA BANK OF THE CITY OF NEW YORK vs. DISTLER. In an action upon a promissory note, the complaint alleged that the note was dated in 1872 by mistake, and that it was designed to have been dated in 1871. The answer denied these allegations, and the parties went to trial on this and another issue. Held, that by answering the allegations, the defendant practically conceded their sufficiency for the trial of the fact of mistake. That it was too late for him, after the trial was actually commenced, to object that the statement in the complaint was defective; and that it was the duty of the court to overrule an objection to the evidence offered to prove the mistake. The date of an instrument in writing is only presumptive evidence of the time of its actual execution; and whenever fraud or mistake is alleged, this presumption may be contradicted by parol evidence. |