The question was briefly spoken to by Jewett, for the plaintiff, and Kent and Rogers for the defendants ; and the opinion of the Court was delivered at the ensuing June term in Washington, by
Mellen C. J.In this action the plaintiff declares on an account annexed to the writ, containing several charges, on which he claimed a right to recover: but afterwards, when the agreed statement of facts was signed, the plaintiff acknowledged that none of the charges could be sustained, but the first for $25,48 ; and the correctness of this was then admitted by the defendants; and as to this sum the only question is whether the proceedings, stated by the parties respecting the drawing and offer of the order to the plaintiff, and his refusal to receive it, taken in connexion with the knowledge of the plaintiff as to the usual mode of transacting such business, by the selectmen and treasurer of the town, with the creditors of the town, is equivalent to a tender of the money for which the order was drawn. No case has been cited which in all respects resembles this. In the case of Varner v. Nobleborough, 2 Greenl. 121, the plaintiff had accepted the town order in payment ; and the court decided, that according to the’ well known usage, it was his duty to present it for payment to the treasurer, before he could sustain an action upon the order; but in the pres*112ent case the order was not accepted by the plaintiff, he at that time claiming that a larger sum was due than the amount of the order •which he refused to receive j and such a claim was the reason of his refusal. We apprehend that the knowledge of the usage in such cases does not lay a creditor under any obligation to a compliance with it, except in those cases where he voluntarily receives an order for an undisputed amount. In such a case he must present it to the treasurer, and not sue the town upon it before so doing. But when he refuses the order, he thereby puts the town on its guard, and those who have the management of its prudential concerns, may then protect themselves from damages occasioned by a suit, by a legal tender of the amount due. In Varner v. Nobleborough, the order was negotiable, and, like a negotiable'promissory note, amounted to payment of the account, and an extinguishment of the implied promise; and the order not having been presented, the plaintiff failed in his suit. But in the action of Slemmons v. Westbrook, cited and commented upon in Warner v. Nobleborough, the order was not a negotiable one, and it is understood that the Court permitted the plaintiff to recover on the account annexed to his writ, that is, upon the unextinguished implied promise. In the case before us, the order is not negotiable and the action is founded on the implied promise, and this seems governed by the same principles which dictated that decision. _ The defendants should have tendered as much as they confessed to be due, and not have relied on the offer of an order for that amount only, while a contested claim for a larger sum was insisted on by the plaintiff at the time. The effect of the proceedings adopted should be considered according to the then existing facts, and not the facts subsequently ascertained. The defendants must be defaulted.