On Petition for a Rehearing.
Morris, C.— The appellee Henry C. Taylor insists that the conduct of the appellant, as alleged in the answer and proved upon the trial, was such as to relieve the appelleesfrom tendering to him the note of Ogden and Ramey, for which he had agreed to release Edward Taylor from all liability on the note in suit, and that, therefore, the court erred in reversing the judgment below.
The answer alleges that the appellant agreed that if Edward Taylor, one of the joint makers of the note sued on, would procure for him the note of Ogden and Ramey for $500, payable at a certain time, he would accept such note in discharge of Edward Taylor’s liability on the note in controversy; that he procured the note as agreed, payable to himself, and tendered it to the appellant at the proper time, but that the latter refused to accept it.
The proof showed that Edward Taylor did procure said note-for $500 payable to himself at the time agreed upon; that he saw the appellant at the proper time, told him that he was-ready to turn over the note to him, but that, after some delay, *45tlie appellant refused to accept it, skying that he could not do so without releasing all the makers of the note in suit. The note was not endorsed by Edward Taylor, nor did he at any time offer to endorse it. Taylor did not bind himself by the agreement to do anything.
The agreement set up in the answer and proved upon the trial was an accord, and its performance would operate as a satisfaction of the note in suit. An accord without satisfaction is not good. Whart. Con., sec. 999. In the case of Pettis v. Ray, 12 R. I. 344, a case like this, it was held that when A., the payee of certain notes, had agreed with the maker that if he would find a purchaser for the mortgaged premises by which the notes were secured, who was to pay the arrears of interest, refund certain expenses and execute new notes to the payee, he would accept the purchaser as his debtor and release the maker. The maker procured the purchaser, but the payee refused to consummate the agreement.- Held, no bar to an action on the notes.- And the question is, did Taylor execute the accord to that point where it was to operate as a satisfaction of his liability on the note sued upon? Did he do all that he was bound to do? Had he endorsed the note and tendered it to the appellant, upon his refusal to accept it he might have laid it down and left it at the appellant’s peril. This would have been a complete execution of the accord, and discharged Edwar’d Taylor from his liability on the original note. Or, having endorsed it or offered'to, he might have held it ready to be endorsed and delivered to the appellant at any future time. But he did neither of these things. The refusal of the appellant to abide by the accord did not relieve the appellees, if they wished to insist upon it, from performance on their part. If the payee of anote agrees to accept from the maker something — notes on third persons or other property — in payment, the maker must, in order to defeat a suit upon the note, show that he had performed the agreement on his part to the point where it was, by its *46terms, to operate as satisfaction. Neither the repudiation of the contract, nor the refusal of the payee of the original note-to accept satisfaction, will relieve the other party, if he insist upon enforcing the contract, from performance on his part. Such refusal does not prevent performance. The party may tender the thing agreed to be accepted in payment, and, if it should be refused, he may set it apart for the other party and leave it at his peril. In such case the title to the thing tendered vests in the party to whom the tender is made; but the-party is not bound to pursue this course. He may, having made the tender and done all that was required of him, retain and hold thé property ready to be delivered at any time; and, as in this case, when sued upon the original’contract, he must, in order to defeat it, still perform, by bringing the property into court, or doing that which is equivalent to it, so that, by the judgment of the court in his favor, the title may passtothe other party. The note not having been endorsed to the appellant, the property could not become his. As long as anything remains to be done, in such case, the property does not pass.
When a tender is pleaded, as in this case, with a profert, the party should have the article in court. We held the answer good on the ground that it alleged that the Ogden and Ramey note had been properly tendered and endorsed and brought into court. The proof shows that it was not endorsed. The appellee says that this was not necessary, because the appellant refused to accept the note, not because it was not endorsed, but because, by accepting it, he would release other parties on the original note; but by his defence the appellee seeks to defeat the action on the original note by compelling the appellant to stand by the subsequent agreement. He can not do this and still retain the Ogden and Ramey note. The judgnjent in favor of the appellees would not transfer the Ogden and Ramey note to the appellant. It would still belong to Edward Taylor.
We haye examined the cases referred to by the appellee, *47and think them not in point. In the ease of Blewett v. Baker, 37 N. Y. (Sup. Ct.) 23, the plaintiff had agreed to procure a lease* for certain premises, and assign it to the defendant, the latter agreeing to pay the rent. The plaintiff procured the lease, notified the defendant of the fact, and that it was ready for his acceptance, and requested him to appoint a place where the same could be accepted ,by or transferred to him. The defendant refused to comply with the notice, or to accept an assignment of the lease, saying it was too late. The court-held, in an action to recover damages for a breach of the contract, that the refusal superseded the necessity of a tender. The plaintiff retained the lease, and sought only such damages as he had sustained by the refusal of the defendant to accept it. In such an. action the stipulated rent, less the benefit accruing to the plaintiff from the premises leased, would be the measure of the damages. It was not an action to compel the defendant specifically to perform the contract on his part. In the case in hearing the defence seeks to enforce the contract against the appellant, on the ground that the Ogden and Ramey note operated as payment of the note in suit. It would extend this-opinion unduly to notice particularly each case referred to by-the appellee.
Per Curiam. — The petition is overruled.