It is not material to the decision of this case, whether the contract which is the basis of the action, is technically an accord for the satisfaction of a debt or claim, and insufficient for that purpose before its actual execution, or a mere ordinary contract for the sale and purchase of chattels, not belonging to the former class of contracts. In either, view it is valid; the mutual stipulations constituting a sufficient consideration; and it not being obnoxious in any other respect to legal objection. An accord unperformed, consisting of mutual promises, and thus having a new consideration, is binding upon the parties, and an action will lie for a breach of it. (2 Parsons on Cont. 195. Cartright v. Cook, 3 Barn. & Adol. 701. Story on Cont. § 982. *553Com. Dig. Accord, B. 1 to 4.) The plaintiff having tendered performance on his part, and the defendant having failed to perform, a cause of action thereby arose in favor of the former, against the latter, for such damages as the plaintiff had by the breach of contract sustained.
The complaint is framed upon the theory that by the tender of performance by the plaintiff the title to the chattels vested in the defendant, and the plaintiff thereafter held the chattels as the defendant’s bailee, and that the plaintiff is entitled to recover the amount of the notes and for the keeping and care of the property. It is alleged in the complaint, that the largest note was transferred by the defendant before maturity, and that the plaintiff was sued upon it and paid the same to the holder, but the alleged transfer and suit are disproved. If this theory is sound, the notes were paid by the tender, and the only remedy of the plaintiff in respect to the notes—they remaining in the defendant’s hands—was to refuse to pay them again, and when sued upon them to set up the payment as a defense. He could not voluntarily pay the notes to the defendant and then in any mode recover back the amount paid. (Loomis v. Pulver, 9 John. 244. Egleston v. Knickerbacker, 6 Barb. 458. Sawyer v. Tappan, 14 N. Hamp. R. 352. Mitchell v. Sandford, 11 Alabama Rep. 695.) But I am satisfied the theory, upon the facts of the case, is not tenable. It does not appear that the plaintiff, after the tender, assuming that it is a case in which he was entitled by law to elect to treat the property as belonging to the defendant, made such an election; it is not proved that he so declared at the time of the tender, or so notified the defendant subsequently; he retained the property in his possession, for aught that appears, as his oum ; and before the commencement of this action, without any notice to the defendant, sold the same. (2 Kent's Com. 504. Sands v. Taylor, 5 John. 396, and cases there cited.) The evidence of the sale was proper, although not set up in this answer, upon the question of such an election ; particularly as it is alleged in the complaint, and denied in the answer, that the plaintiff had kept the property for the defendant up to the com*554mencement of the action. In case of a note, or similar obligation, payable in specific articles, where nothing is to be done by the creditor but to receive performance, a tender of the articles at the time and place appointed for performance discharges the debt; the property becomes the payee’s,, and the maker holds the same as his bailee, and at his expense and risk. This rule prevails where the relation of debtor and creditor exists. (2 Kent’s Com. 508, 9. Lamb v. Lathrop, 13 Wend. 95.) But this doctrine does not, as a general rule, apply to cases of contracts like the present, executory on both sides. (Shannon v. Comstock, 21 Wend. 457. Thompson v. Alger, 12 Metcalf, 428. Laird v. Pine, 7 Mees. & Wels. 474, 478.) Bement v. Smith, (15 Wend. 493,) is materially unlike the present. In that ease the plaintiff built a sulky for the defendant, at a price agreed upon, and tendered it to the defendant, who refused to receive and pay for it; the plaintiff then left it with a third person, after notice to the defendant that he would do so, and he was allowed to recover the price of the sulky. That was not a contract for the sale óf a chattel, but for work and labor, and the decision, as appears by the opinion of the court, was controlled by reasons peculiar to like eases. The usual consequence of a default to receive and pay for property on an executory contract of sale, is a liability for the actual damages sustained; and the rule of damages is the difference between the contract and the market price of the property at the time for delivery. (Davis v. Shields, 24 Wend. 322. Sedgwick on Dam. 260.) I think that is the rule applicable to this case.
The complaint, as already stated, is not drawn with reference to this rule of damages, and it is obvious that the plaintiff at the trial did not seek to recover according to it., No evidence was given of the value of the propertyj whether it was worth less or more than the amount of the notes, does not appear. At most, therefore, the plaintiff could be allowed only nominal damages. But those I think he was entitled to. (Sedgwick on Dam. 47. 1 Chitty’s Pl. 296, Phil. ed. of 1828.) When a defendant answers, the court is not limited, in granting relief, to the relief particularly demanded in the complaint, but may *555grant any relief consistent with the case made by the complaint and embraced within the issue. (Code, § 275.) The damages implied by law from a breach of the contract are consistent with the complaint and within the issue. Were this an application for a new trial on a case, which is to some extent addressed to the discretion of the court, I should be disposed to refuse it. (Brantingham v. Fay, 1 John. Cas. 256. Hyatt v. Wood, 3 John. 239. Feeter v. Whipple, 8 id. 369. Cady v. Fairchild, 18 id. 129.) But upon appeal, founded on exceptions to the report of the referee, the exceptions must be determined according to the strict legal rights of the parties. (Herrick v. Stover, 5 Wend. 580. Horton v. Hendershot, 1 Hill, 118.)
[Monroe General Term, March 2, 1857.The judgment must be reversed, and a, new trial granted, with costs to abide the event.
T. R. Strong, Welles and Smith, Justices.]