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No. 805.

Book 2, part 2, tit. 4, chap. 5, sec. 1, § 4.

No. 805..

will depend upon our intentions. If you have not discharged my obligation, it is merely an authority which I have given to you, and which you have accepted, but still I remain liable to you; if Titius does not pay you I am liable. This is the common case of the transfer of a bill of exchange or promissory note, endorsed by the debtor.

2. But if you accept such bill or note made by Titius, and endorsed by him in blank, and accept him as your only debtor, then my debt is extinguished and there is a novation.

§ 4. Of extinguishment by accord and satisfaction.

805. The fourth way of extinguishing an obligation by the act of both parties, is by accord and satisfaction, which is the settlement of a dispute or the satisfaction of a claim, by an executed agreement between the party injuring and the party injured.

Accord and satisfaction in some respects resemble the contract of sale; dare in solutum, est quasi vendere. There is, however, some difference; 1, the contract of sale may be perfect without actual delivery of the thing sold, but accord is not sufficient without satisfaction; 2, when a person pays what he supposed he was owing, and he does not owe so much, he may recover the excess, in an action for money had and received; not so when property other than money has been given in payment: example, I owe you truly one hundred dollars, but we both supposed the debt to be two hundred dollars; instead of paying you the money I give you a horse estimated at two hundred dollars, as an accord and satisfaction of the debt, I cannot recover the difference; on the other hand, where a debt has been discharged by accord and satisfaction for less than its amount, an action cannot be supported for the balance; (a) 3, he who sells goods which are not in

(a) Stafford v. Bacon, 2 Hill, 253; S. C. 25 Wend. 384; Williams v. Stanton, 1 Root, 426; Blinn v. Chester, 5 Day, 360.

No. 806.

Book 2, part 2, tit. 4, chap. 5, sec. 2, 3.

No. 808.

his possession does not guarantee the title, (a) but it would be no satisfaction unless the title to the thing actually passed.(b) The consideration of this subject will be resumed in the sequel.

SECTION 2.-OF THE EXTINCTION OF THE CONTRACT BY THE ACT OF ONE OF THE PARTIES.

806. Sometimes a contract may be annulled by one of the parties, as where there is a special clause in the agreement that one of the parties shall have the power to annul the agreement within a certain time; or when it results from the nature of the contract, as when two persons are in partnership and no time is limited for its duration, either party may annul it at pleasure. Again, a mere mandate or letter of attorney may be revoked by the constituent at any time.

SECTION 3.-OF PAYMENT.

807. The most natural way of extinguishing an obligation which a man has contracted, is doubtless to fulfil his promise by delivering to his creditor the thing due, if the obligation consist in delivering the thing; and in fulfilling the act promised, if the obligation consist in doing a thing. This is what is called paying, and which the Latins energetically called solvere, to unbind one's self, to untie the knot or lien of the obligation: solvere dicimus eum qui fecit quod focere promisit. But in a more general acceptation of the word, are included all manner of extinguishing obligations by which the creditor is or ought to be satisfied, and the debtor becomes free.

808. To understand this subject it will be proper to consider, 1, by whom the payment is to be made; 2, to whom; 3, what is to be paid; 4, when the payment is to be made; 5, where it is to be made; 6, the effect of the payment; 7, how payment is to be appro(a) Cro. Jac. 197.

(b) Poth. Vente, n. 602, 604.

No. 809.

Book 2, part 2, tit. 4, chap. 5, sec. 3, § 1, 2, art. 1.

No. 811.

priated; 8, effect of a tender and payment of money into court.

§ 1. By whom the payment is to be made.

809. The payment may be made by the real debtor or other persons from whom the creditor has a right to demand it; an agent may make payment for his principal, and any mode of payment by the agent, accepted and received as such by the creditor, as an absolute payment, will have the effect to discharge the principal, whether known or unknown, and whether it be in the usual course of business or not.

When several persons are liable for the same debt, payment may be made by any one, and it will discharge all the rest, (a) because the creditor is entitled to one satisfaction only.

The moment the creditor, as such, has received payment, it is clear he can have no further claim; if, therefore, a third person, a stranger, pay the debt, without the consent of the debtor, but in his name, the payment will be good.(b)

§ 2. To whom payment is to be made.

810. To be valid, the payment must be made to the creditor himself, or his assigns, if known, or to some person authorized by him, either expressly or by implication.

Art. 1.-Of payment to the true creditor.

811. By creditor must be understood not only the person with whom the contract was made, but also his executors, administrators and assigns.

To make a valid payment to the creditor himself, or to those who represent him, he must at the time be capable of administering his estate, he must be sui juris. If therefore the creditor was, at the time of the

(a) Boggs v. Lancaster Bank, 7 Watts & Serg. 331.

(b) Harrison v. Hicks, 1 Port. 423. See Keller v. Leib, 1 Pennsyl. 220.

No. 812.

Book 2, part 2, tit. 4, chap. 5, sec. 3, § 2, art. 2.

No. 813.

payment, either a minor or a married woman, or one found non compos by inquisition, a payment to him would be void, unless perhaps the money so paid had gone to the actual use of such creditor, as if it had been applied to pay his debts, which the guardian, the husband, or the committee, were bound to pay.

In case the original creditor should have assigned a chose in action, not assignable at law, as a book debt, or a note not negotiable, a payment to the assignor without notice of such assignment is good.

When the debt is due to several joint creditors, payment to one is in general a valid payment.(a)

Art. 2.-Of those who are authorized by the creditor to receive payment.

812. When a payment is made to those whom the creditor has appointed to receive the money for him, it is considered as if made to himself. It therefore follows:

1. That it is of no consequence who the agent or attorney in fact may be, whether he be an infant or a feme covert.

2. That the authority given must be by one sui juris, for if an infant or married woman were to give a letter of attorney to receive a debt, payment to the attorney would not be good, because the debtor could not have made a valid payment to such infant or married woman.

813. The authority given to an attorney expires by the death of the constituent; if a woman, by her marriage; or if given to an attorney at law, it ends with a substitution of another.(b) But till notice of the change or implied revocation, payment to the attorney would be good.(c)

(a) Scott v. Trent, 1 Wash. 77; Marrow v. Starke, 4 J. J. Marsh, 367. (b) Weist v. Lee, 3 Yeates, 47.

(c) 3 T. R. 215; Poth. Ob. n. 513, French ed.

No. 814.

Book 2, part 2, tit. 4, chap. 5, sec. 3, § 2, art. 3, 4, 5.

No. 816.

Art. 3.—Of those who are invested by law to receive payment.

814. Payment to those who are authorized by law to receive payment, instead of the real creditor, is always valid. The law authorizes the guardian of a minor, the committee of a lunatic, the husband of a woman, when there is no trust, the executors of a deceased person, the assignees of an insolvent or of a bankrupt, to receive a payment of what is due to them respectively, and their discharges will be good.

Art. 4.-Of those who are authorized by the agreement to receive payment.

815. The contract sometimes points out a third person to whom payment is to be made, a payment to him will then be good; as if I sell you my house for five thousand dollars, three thousand dollars payable to me in six months, and two thousand dollars payable in one year to Titius to whom I am indebted, and who has agreed to receive the money in payment of my debt. This last sum must be paid to Titius, but this is only on condition that he shall retain his rights to act sui juris, and he has not transferred his rights to another.

Art. 5.-How payments may be validated.

816. When a payment has been made to one who, in reality, had no just right to receive it, it is as if no payment had been made; but, if afterward, the creditor does certain acts, by which he sanctions it, then it becomes valid, and the debtor is discharged. Such payment may be made effectual in several ways.

1. By express ratification, which is the approbation of the creditor given after the payment. A ratification has a retrospective effect, and binds the creditor from the time of payment, and is equivalent to an original authority, according to the maxim omnis ratihabitio mandate æquiparatur.(a)

(a) Wood v. Carpenter, 4 Wend. 219; Odiorne v. Maxcy, 13 Mass. 178,

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