legal tender and has kept it good. The plaintiff may secure a judgment against the defendant but if the tender was well made the judgment will not include the costs of the action as would be the case if no tender had been made.

The effect of a legal tender of chattels is to deliver them, although the possession may still remain with the debtor, who holds them as a bailee. A debt then, payable in chattels is fully paid and discharged by a legal tender of those chattels.

A and B differ as to the amount A owes B, and A tenders the amount he admits as due, and B refuses it. B then brings an action against A. If he does not get a judgment for more than A tendered him he (B) must pay the costs.

CHAPTER XII.

PAYMENT.

116. What is Payment. -If the agreement is to pay a debt in money, it can be made in any of the moneys which are considered legal tender, and indeed if accepted as payment with a full knowledge of what it is, any money will be considered by the law as payment. If the creditor insists he need not accept any money except legal tender.

117. Payment by Mail.-It should be borne in mind that if the contract is silent as to where the payment is to be made, it is the duty of the debtor to seek the creditor and make his payment to him. The creditor is not in such cases obliged to make a demand before bringing an action. If the creditor requests the debtor to send the money to him by any certain method, as by mail or registered letter, and the debtor follows his instructions strictly, then it is at the creditor's risk. It is payment though lost. It is payment though lost. If, on the other hand, the debtor, to save himself the trouble of seeking the creditor, and without instructions sends the money by mail or other means, he is responsible for its receipt, and must suffer any loss.

118. Payment by Note.-The taking of the debtor's own note for an account is not in general, payment of that account, for the creditor may return the note and sue upon the account. It may,

however, have the effect of postponing the date of payment until the note would fall due. If, however, there is indicated a clear intention to accept the note as payment, it must be so considered, but this intention must be unmistakable.

119. In the Sale of a Chattel a third person's note or acceptance will be regarded as payment. It is in the nature of giving one chattel for another. If it be for a pre-existing debt, the weight of authorities is that it will not be regarded as payment.

A purchases of B a bill of goods and gives in payment, without indorsement, C's note, made payable to bearer. Before maturity, C becomes insolvent. What are B's rights?

If this note had been given for a pre-existing debt, what rights would B have?

It should be observed that taking a note of a third person as collateral security does not operate as payment.

120. Payment by Check. - The acceptance of a check, whether that of debtor or of third person, is payment, unless it be dishonored when properly presented.

121. Part Payment.-As a general rule when the exact amount of the indebtedness is known and admitted, a part payment will not operate as a discharge of the whole, even though the creditor agrees to accept the part in satisfaction of the whole. There must be some legal benefit or legal possibility of a benefit to the creditor sufficient to amount to a consideration for his promise to release the residue. Neither does the giving of a receipt change this, for it is a wellknown principle of law that a receipt may be disputed or explained by parol evidence.

If a piece of personal property be accepted in addition to the part payment of money, it will operate as a discharge of the whole, though the value of the chattel may appear to be an inadequate consideration. So if the debt is not yet due, or the exact amount of it is in dispute, acceptance of a less sum than that claimed by the creditor will discharge the obligation.

A mutual agreement by the creditors of an insolvent to accept a less sum than their respective claims is binding. The promise of one is a consideration for that of the others. (See sec. 69.)

Payment if made to

122. To Whom Payment May Be Made. the creditor is of course valid. It can be made to one of several partners when the indebtedness is to the partnership. It may also

be made to the creditor's authorized agent, and one who is found in possession of the creditor's books of account, and apparently in possession of his affairs, may give a valid release.

123. Application of Payment.-When there are several debts due the creditor from the debtor, and a payment is made, the question arises, to which debt must the payment be applied. It becomes exceedingly important when some of the bills are barred by the statute of limitations and others not. The rule is that at the time of payment the debtor may direct to which account he wishes it applied. The creditor is not obliged to receive less than the whole of any account, but if he does receive it he must apply it as the debtor directs. The debtor failing to direct the application of his payment, the creditor may apply it as he chooses. He may even apply it to a debt already barred, but it will not revive the balance. He cannot apply it, however, to an account growing out of an illegal transaction, and then claim on the legal obligations.

PERFORMANCE.

124. Meaning.-The defendant may plead that he has performed his contract entirely, or as far as required before the plaintiff should perform his part. In order to be a good defense the performance must conform essentially to the material conditions of the contract as regards time, place and manner. Formerly the law required a strict compliance in all respects, but as this rule often worked a great hardship, it has been much relaxed.

125. Time of Performance.-Whether the time of performance or non-performance of a contract is an essential element will depend upon the circumstances of the case. It may be so important that the injured party may legally refuse to accept any performance at a later day; in other words, he may rescind the contract; and in other cases he may be justified in accepting performance and in claiming a reduction of his part for lack of promptness in the other party. If time can be shown to be an unimportant feature in any case, a performance that is substantially on time will be a valid defense.

A lady ordered a dress from a store and at the time of ordering stated that she wished it for a certain gathering to be held on the following Saturday evening. The order was accepted on these terms, but the garment was not delivered till two days after the date specified. The lady then refused to accept the dress.

126. Time, How Counted. When the time is expressed in months, calendar months are meant. It is also a general rule that the day the contract is made is not to be counted, but the day of performance is a part of the time. When the last day of performance falls on Sunday or a holiday, the party has the succeeding day in which to perform.

127. Part Performance.-When the contract is for a certain term of service, or for a certain quantity of personal property, and there is an inability to more than partially fulfill the contract, it does not render it all void. The servant who has thus rendered only a portion of his services may recover quantum meruit, that is what he merits, less any damages his failure may have caused the other party. In the case of the delivery of only a portion of the personal property, recovery may be had quantum valebat, that is for its value, less any damage caused the other party.

In contracts for personal service there is always an implied provision that health permits.

FORFEITURE.

128. Explanation.-Often in making contracts the parties stipulate that in case either party fails to perform his part of the contract, he shall forfeit to the other a certain stipulated sum. This provision will not usually be upheld by the courts, for it is a maxim of the law that "The law abhors a forfeiture." It is deemed sufficient that the injured party be allowed his damages actually suffered, and not that the other be punished for his failure.

This rule does not prohibit the parties from agreeing beforehand upon the amount of damages each would suffer upon the failure of the other, called liquidated damages. But it must appear to be an honest agreement made with this end in view, and not in any sense a forfeiture.

SET-OFF.

129. Set Off as a Defense. When suit is brought against a debtor he may plead that he has not paid the debt because he has a claim against the creditor which is unpaid. It is often called a counter claim. Litigation is often much simplified in this manner, for the validity of the claims of each can be tested in the same suit. He who has the largest valid claim against the other will get a judg

ment against the other for the difference. The debt sought to be recovered, and that to be set off, must be mutual, and due in the same right. A joint debt cannot be set off against a separate one, nor vice versa. The defense of set-off is allowed for the benefit of the defendant, hence he can avail himself of it, or bring a separate action for his claim, as he may choose.

RECOUPMENT.

130. Recoupment as a Defense.-Recoupment is used as a defense in the same manner as set-off. It differs from set-off in that the two claims must arise out of the same transaction, while in set-off such need not be the case. Then in set-off it is debt against debt, but recoupment is a reduction of damages in an action for breach of warranty or defect in performance. It is withholding a discount claimed to be due for a defect.

A sold B a horse and warranted it to be sound in every particular. The consideration was to be $100, due in three months. The horse proved to be unsound, and B refused to pay the full consideration, and A sued him for it. B's defense was a breach of warranty. The jury gave A a verdict for $75. B's defense was recoupment. What would have been the effect if B had made a legal tender of $75 to A before the suit was brought ?

CHAPTER XIII.

MISCELLANEOUS ITEMS.

131. Important Rule of Evidence.-It has been observed in section 96 that a trial is conducted according to a well-understood code of rules. Even the evidence that may be introduced is subjected to the careful scrutiny of the court, and none will be admitted either for or against except it be clearly legal. One of the most important rules of evidence is that "No parol evidence can be admitted to explain, vary or contradict that which is written." As a result of this rule, when two parties have made a contract and committed it to writing, that writing, when obtainable, is the only permissible proof of the contract. As a mere rule of evidence this knowledge is of little benefit to any but practicing attorneys, but when we come to