Plaintiff, Curiae, sued the firm of D. Abadie Freres, December 15th, 1862, and attached their stock of goods. Thereupon Abadie Freres, as principals, with defendants Packard and Burton as sureties, gave to the Sheriff a bond entitled in said cause, in the sum of two thousand five hundred dollars, reciting the attachment by him of said goods, and conditioned that “if the said plaintiff recover judgment as against the said defendants in the above entitled action, that the said judgment will be well and truly paid to the extent of the said sum of two thousand five hundred dollars, including costs.” Upon *196the execution of the bond, the property attached was released. The next day after giving the said bond, (December 16th) the defendants in that suit, Abadie Fréres, tendered to the plaintiff in the suit the sum of two thousand dollars—the principal of the note in suit—in United States legal tender notes, claiming that they should be received at their face; and the full amount of interest and costs accrued in the suit in coin. The plaintiff offered to receive the legal tenders at their market value, and credit the amount on the notes, but refused to receive the sums tendered at th'e full value expressed on the face of the notes. A paper entitled in the cause admitting the tender as above stated, signed “Charles E. Huse, attorney for plaintiff,” was filed in that cause. Defendants never answered, and judgment by default was entered against them, March 18th, 1864, for the amount of the note, interest and costs. The judgment not being paid, the Sheriff assigned the beforementioned bond, executed by defendants, Packard and Burton, as sureties for “Abadie Fréres,” to plaintiff, Curiac,. who thereupon commenced this suit. The defendants, in their answer, aver that after the making of the said bond the said principals, “Abadie Fréres,” tendered to plaintiff the full ■amount of the sum due in the action against them, which the bond was given to secure, together with interest and costs then accrued, and that thereby the "said sureties became and were discharged. Upon the trial the Court found the facts as alleged, held the sureties to be discharged by the tender, and accordingly rendered judgment for defendants. A motion for new trial having been made and denied, the plaintiff appealed from the order.
Appellant insists that the only evidence of the tender is the admission in writing, by plaintiff’s attorney, filed in the case of Curiac v. Abadie et al., and that the admission thus made in another case by the attorney of record is not evidence of the fact in this case. The Judge, in his finding, says the facts were admitted. The statement does not, however, directly so state. But it appears by the statement that “the defendant offered and read in evidence, without objection, the admission *197of Charles E. Huse, attorney for plaintiff in said action of Curiac v. Abadie Brothers * * * as followsgiving a copy of the admission in writing before referred to. And that “ at the trial the plaintiff asked the Court to decide, as a matter of law, ‘ that the tender of greenbacks made by Abadie Brothers, in Curiac v. Abadie Brothers, which was not accepted, nor was the money paid into Court, furnished no defense to Packard and Burton, the defendants in the present action.’ That the Court refused so to decide, to which ruling of the Court the plaintiff excepted.” No question as to the competency of this evidence to prove the fact of tender appears to have been made at the trial. Nor do we understand this to be the point of the specification of the ground of new trial in the statement. But the question raised was as to whether the facts shown constituted a valid tender. The testimony having been admitted to prove the fact, without objection, and treated as competent, and the fact of the tender having been treated by all parties as proved, it is now too late for the first time to raise the question, even admitting, for the purposes of the argument, the testimony to be incompetent. Had the objection been made at the proper time, other testimony would doubtless have'been introduced.
The question, therefore, is, did the tender discharge the sureties ? We think it did. The contract of the defendants, both in substance and form, was one of suretyship, to secure the sum due the plaintiff from Abadie Brothers—if anything should be found due—to the amount of twenty-five hundred dollars. The full amount due for principal, interest and costs of suit, was subsequently tendered in lawful money by Abadie Brothers to the plaintiff, and he had an opportunity to receive his money from the principals in the bond. His refusal to accept it was a breach of good faith toward the sureties, and their interests were imperilled by the wrongful acts of the plaintiff. The averments of plaintiff’s complaint show, that', in point of fact, the principals have become “ utterly bankrupt,” so that, in all probability, if plaintiff should recover in this action, the loss would fall upon the sureties—and this in *198consequence of the act of the plaintiff. Such liability to loss is the reason given for the rule that sureties are discharged by any.act of bad' faith in relation to their contract on the part of their obligees.
“The contract of suretyship becomes extinct or discharged by a lawful tender made by the principal or his authorized agent to the creditor or his authorized agent.” (Bouvier’s Law Dictionary, title, “Suretyship.”) But we have recently fjrlly discussed the rights of sureties in the case of Hayes v. Josephi, 26 Cal. 535. We there said: “So when the means of satisfying the debt subsequently comes into the hands of the creditor, and he does not avail himself of such means, but parts with them without the knowledge or consent of the surety, the surety is discharged. (Baker v. Briggs, 8 Pick. 129; Hays v. Ward, 4 John. Ch. 129; 8 Serg. and R. 457; Serg. and R. 157.) Under these authorities, certainly a tender by the principal debtor, and a refusal by the creditor to accept the money, would discharge the surety.” We see no reason to doubt the soundness of these views. Defendants were sureties for the debt for which the tender was made, and the question is not, what might be its effect,upon the question of costs between the parties to the suit—but whether there was such a tender as made it the duty of the plaintiff to receive the money and exonerate the sureties.
We think the new trial,was properly denied, even though the particular reason assigned may not have been the prpper one.
Order denying new trial affirmed.