Brooklyn Bank v. De Grauw

Nelson, Ch. J. By the Court, Assuming that the substituted agreement for securing the bank debt had been fully proved, there is still an in [343] superable difficulty in setting it up in bar of the action. It is hut an accord executory. Tender of performance was proved, but this has never been *held equivalent to an execution for the purpose of [* 344 ] this defence. 5 Johns. R. 392. 6 Wendell, 390. 19 id. 408, and cases cited. We have been referred to Case v. Barber, Sir T. Raym, 450, and T. Jones, 158, S. C. as an authority for the plea of an accord without satisfaction, but with tender. That case was pressed by counsel in Allen v. Harris, 1 Ld. Raym. 122, but the court answered, that the cases were so numerous that an accord ought to be executed, a different decision would “ overthow all the books.” The same case was also urged in James v. David, 5 T. R. 141, but disregarded. The point in the case seems never to have been regarded as authority. The cases referred to in 22 and 23 Com. Law R. 90, 165, are altogether different from the one under consideration. They turned upon the effect of a composition agreement between the debtor and several creditors, and stand upon principles peculiar to that species of arrangement. But in point of fact, no definite agreement between the parties was proved ; or, if otherwise, the tender did not come up to it. The proposition of De Grauw was acceded to with a qualification; but whether he ever assented to it or not, no where appear. His assent should have been affirmatively shewn before the arrangement could be regarded as complete. The evidence is positive that the old securities were not to be given up, and there is nothing to contradict it. Did De Grauw assent ? if he did not, the minds of the parties never met in the alleged arrangement. If he did, then the tender was defective, as he there insisted upon as the surrender of the old notes. It appears to me, also, that another fatal objection exists to this defence, even if the tender at first could be regarded as sufficient. The deed, mortgage and note, after the bank refused acceptance, were destroyed. If the tender should still constitute a bar to the suit on the original demand, the debt, for aught that appears, is gone, for the remedy could only be upon the new securities, and they are cancelled. Even in the case of a tender and refusal of specific chattels which operate to discharge the debt, and extinguish the further relation of debtor and creditor, the.property of the articles *is deemed to vest in the. creditor, and the parties [ *345 ] afterwards stand in the relation of bailor and bailee. 8 Johns. R. 478. 4 Wendell, 525. 13 id. 96. If the tender in this case was valid at all, an interest, I apprehend, vested in the bank, which would enable it to enforce the securities in case De Grauw insisted upon an execution of the arrangement. Upon no other view can the effect claimed by the tender be upheld, consistent with the principles of justice. Now the destruction of the deed might not operate to re-invest the title in De Grauw j yet I do not [345] perceive how it can be denied that the security by the bond and mortgage is utterly extinguished. But waiving all this, it is sufficient to say that the tender here is not governed by the rules applicable to specific chattels ; it is like a tender of money, or things that may be brought into court. In such a case the defendant must plead that he has always been and still is ready with the money or thing tendered, and it must be in court on the trial. 6 Bacon, 465. Bro. tout temps, prist, pl. 3. 2 Roll. Abr. 524. 20 Viner, 312, E. Chip. on Cont. 59. 2 Kent’s Comm. 508. New trial granted; costs to abide the event.