that a plea to an action on covenant for the payment of a sum certain, that before breach defendant satisfied the covenant by delivery to, and acceptance by the plaintiff, of goods, machinery, etc., in satisfaction, was bad, Martin, B., saying, "I am sorry I am compelled to agree in holding that the plea is bad. It is difficult to see the correctness of the reason upon which the rule is founded." I suppose there can be no doubt that the facts presented by the plea in the case of Spence v. Healey would have constituted a good ground for relief in equity. The technical distinction. between a satisfaction before or after breach seems to have been disregarded in this State, and a new agreement by parol, followed by actual performance of the substituted agreement, whether made and executed before or after breach, is treated as a good accord and satisfaction of the covenant. Fleming v. Gilbert, 3 John. 530; Lattimore v. Harsen, 14 id. 330; Dearborn v. Cross, 7 Cow., 48; Allen v. Jaquish, Cowen, J., 21 Wend. 633. So, also, a new agreement, although without performance, if based on a good consideration, will be a satisfaction, if accepted as such. Kromer v. Heim, 75 N. Y. 574, and cases cited. In the present case it may be justly said that when the agreement annulling the contract of March 2, 1882, was executed, there had been no breach by Garrison of his covenant therein, as he had not been called upon by the plaintiffs to pay his share of the construction account. But it was the plain intention of the parties. that the new arrangement, then entered into, should be a substitute for the liability of Garrison, present and prospective, under the contract of March 2, 1882. The transaction constituted a new agreement in satisfaction of the prior covenant, and was accepted as such. Moreover, it admitted by the reply that the contracts of October 25, 1882, were carried out. It is a case, therefore, of an executory parol contract, made in substitution of the prior and sealed contract, afterwards fully executed, which clearly, under the authorities in this State, discharged the prior contract. In respect to the claim to recover interest during the time the payment of the $150,000 was delayed, it is sufficient answer that the complaint admits that the principal sum was fully paid prior to September 13, 1882. The claim for interest did not survive, there being no special circumstances to take the case out of the general rule. Cutter v. Mayor etc., 92 N. Y. 166, and cases cited. We are of opinion that the facts admitted in the pleadings dis close that there was no right of action, and that the complaint, for this reason, was properly dismissed. The judgment should therefore be affirmed. All concur. SECTION II. BY COMPLETE PERFORMANCE. Judgment affirmed. The distinction should be drawn here between executed and executory considerations. The former consists of acts done or values given at the time of making the contract, while the latter consists of promises to do acts or to give values at some future time. Where one party gives an executed consideration and the other party a promise, the fulfillment of the promise discharges the contract. All has been done. Where both parties give promises, one being the consideration for the other, the performance of one party discharges him, but the contract still exists. 1. The literal performance of a contract is not necessarily essential. A slight deviation which is not intentional will not defeat recovery. However, a greater or a wilful deviation will defeat recovery.2 2. If one party agrees to perform according to the satisfaction of the other, he must meet this satisfaction in order to recover. This rule is modified somewhat by those which follow. 3. In contracts where a personal taste is to be satisfied, the promisee is the sole judge.3 4. In sales of goods where the promisor can be put substantially in statu quo the promisee is the sole judge.* 5. In contracts for work and labor aside from matters of personal taste, where the work and labor would be wholly lost to the promisor, the courts hold that the promisee must be satisfied when he ought to be satisfied." 1 Nolan v. Whitney, 88 N. Y. 648; Crouch v. Gutmann, 134 N. Y. 45; Hayward v. Leonard, 7 Pick. (Mass.) 180. 2 Van Clief v. Van Vechten, 130 N. Y. 571; Gillespie Tool Co. v. Wilson, 123 Pa. St. 19; Elliott v. Caldwell, 43 Minn. 357. 3 Brown v. Foster, 113 Mass. 136; Zaleski v. Clark, 44 Conn. 218; Adams, etc., Wks. v. Schnader, 155 Pa. St. 394. 4 Walter A. Wood etc. Co. v. Smith, 50 Mich. 565; Exhaust Ventilator Co. v. Chicago etc. Ry., 66 Wis. 218. 5 Duplex Safety Boiler Co. v. Garden, 101 N. Y. 387; Hawkins v. Graham, 149 Mass. 284. (a) Tender. Tender is an offer to deliver something: it may be the act or the payment of money called for in the fulfillment of the contract, the performance of which has been prevented in some manner by the promisee. 1. Where the act called for is the payment of money, a tender of the sum by the debtor does not discharge the debt, although in an action by the creditor it would be a good defense. The debtor must be always ready and willing to pay, and when sued should plead the tender and deposit the money in court. 2. In the case of a debt, the debtor is obliged to find the creditor and pay him the debt when it becomes due, but in the case of a negotiable instrument the holder must present the bill or note to the debtor for payment when it is due. 3. In a contract for the sale of goods, if the vendor fulfills all the terms of the contract as to delivery, and the vendee refuses to accept the goods, the vendor is discharged by such tender of performance and may begin an action or defend one for the breach. 4. The tender of the act or payment of money must conform to any special terms of the contract as to time, place and manner of payment. (b) Payment. The liability of one of the parties may call for the payment of money. It may be the performance required in the original contract, or in a second contract substituted for the first, or in an agreement to give up a right of action arising from a breach. 1. In a contract between A and B, if B is to pay a certain sum of money at a certain time and in a certain way, a payment so made discharges him from his agreement. 2. Again, if B is required to do certain acts, but wishes to pay a sum of money instead; or if he is obliged to pay a sum in one way and desires to pay it in another, he may substitute a second contract for the first and agree with A to accept the substituted performance instead of that of the original contract. The second contract discharges the first, and the payment of the money by B is performance under the new contract and therefore his discharge. 3. Where a breach has been incurred by one of the parties to • Noyes v. Wyckoff, 114 N. Y. 204; Knight v. Abbott, 30 Vt. 577; Waldron v. Murphy, 40 Mich. 668. the contract, giving the other party a right of action, this obligation may be discharged by a money payment made by the offending party to the party holding the right of action. 4. Where a money payment is performance, or where it has been agreed upon as satisfaction for the breach of performance, a negotiable instrument may be given. 5. The acceptance of a negotiable instrument amounts to the substitution of a new agreement for the old one. The maker of the instrument may be discharged entirely or conditionally from his former obligation, depending upon the terms agreed to. 6. If the maker is discharged absolutely from his first contract, then upon failure to pay the instrument when due, the holder's right of action is upon the instrument, not upon the previous contract. 7. If the maker is discharged conditionally from his first contract by giving the instrument, then upon its dishonor at maturity, the consideration for the payee's promise to refrain from proceeding upon his right of action fails and his right upon the original contract is restored to him. CASES. SECTION II.-DISCHARGE BY PERFORMANCE. Substantial performance. DUPLEX SAFETY BOILER CO. v. GARDEN et al. Appeal from a judgment of the Supreme Court at General Term in the second department, affirming a judgment for plaintiff, and from an order denying defendant's motion for a new trial. DANFORTH, J. The plaintiff sued to recover $700, the agreed price, as it alleged, for materials furnished and work done for the defendants at their request. The defense set up was that the work was done under a written contract for the alteration of certain boilers, and to be paid for only when the defendants "were satisfied that the boilers as changed were a success.” Upon the trial 'it appeared that the agreement between the parties was contained in letters, by the first of which the defendants said to plaintiff: "You may alter our boilers, changing all the old sections for your new pattern; changing our fire front, raising both boilers enough to give ample fire space; you doing all disconnecting and connecting, also all necessary mason work and turning boilers over to us ready to steam up. Work to be done by tenth of May next. For above changes we are to pay you $700, as soon as we are satisfied that the boilers as changed are a success, and will not leak under a pressure of one hundred pounds of steam.'' The plaintiff answered, "accepting the proposition," and as the evidence tended to show, and as the jury found, completed the required work in all particulars by the 10th of May, 1881, at which time the defendants began and thereafter continued the use of the boilers. The contention on the part of the appellants is that the plaintiff was entitled to no compensation, unless the defendants "were satisfied that the boilers as, repaired were a success, and that this question was for the defendants alone to determine," thus making their obligation depend upon the mental condition of the defendants, which they alone could disclose. Performance must of course accord with the terms of the contract, but if the defendants are at liberty to determine for themselves when they are satisfied, there would be no obligation, and consequently no agreement which could be enforced. It cannot be presumed that the plaintiff entered upon its work with this understanding, nor that the defendants supposed they were to be the sole judge in their own cause. On the contrary, not only does the law presume that for services rendered, remuneration shall be paid, but here the parties have so agreed. The amount and manner of compensation are fixed; time of payment is alone uncertain. The boilers were changed. Were they, as changed, satisfactory to the defendants? In Folliard v. Wallace (2 Johns. 395) W. covenanted that in case the title to a lot of land conveyed to him by F. should prove good and sufficient in law against all other claims, he would pay to F. $150, three months after he should be "well satisfied" that the title was undisputed. Upon suit brought the defendant set up that he was "not satisfied," and the plea was held bad, the court saying, "a simple allegation of dissatisfaction, without some good reason assigned for it, might be a mere pretext and cannot be regarded." This decision was followed in City of Brooklyn v. Brooklyn City R. R. Co. (47 N. Y. 475) and Miesell v. Globe Mut. L. Ins. Co. (76 Id. 115). |