tween him and the company; and that in pursuance of the authority thus conferred upon him as president, he closed the transaction with Garrison. And yet we find him claiming that he acted without authority from the corporation upon his own responsibility, and that he did not pretend to act for the corporation, and not one word explanatory of the passage of this resolution is given. It is impossible to come to any conclusion except that negotiations for the abrogation of this contract had taken place between the plaintiff and Garrison. Propositions had been exchanged, such propositions submitted to the executive committee, and the president authorized to accept the same and abrogate the contract, and that this idea of individual action arose entirely because Hogg had learned that he had signed this paper of August 13th without adding his name as president thereto.

It must be borne in mind that every person connected with C. K. Garrison who had personal knowledge of any of these transactions was dead. Mr. Hogg was living; he was competent to testify as to the personal transactions between himself and Garrison and his attorneys, both of whom were dead, and he had no fear of contradiction; and that his recollection is not of the best is evident from the fact that he did not recollect his own receipt signed on the 21st of July for 400 of the bonds, and that he testified, first, that he received the 2,900 bonds back on the 13th of August.

Under such circumstances can it possibly be claimed that Hogg was acting individually and not upon the part of the corporation when he had express authority to carry out this contract by, the resolution of the executive committee having power to pass such a resolution. There is another fact proven by this resolution, and that is that claims were made by Garrison because of this contract, and that it was not deemed by the plaintiff that the contract was ended, broken, and that no liability could possibly arise thereunder, because by the resolution the contract is spoken of as one which was existing between Mr. Garrison and the company.

They desired to get rid of it and to be relieved from their obligations thereunder, and the results of these negotiations seem to have been the entry into the arrangement evidenced by the agreement of the 13th of August.

But it is said that Garrison had no claim, and that he had done nothing under his contract, and that, therefore, the contract had been broken by him, and that there was no responsibility upon the part of the plaintiff to him. Whether the position of the plaintiff in this respect is well taken or not it is not necessary to consider. It might be that in a legal proceeding under this contract Garrison would have no claims under the facts as now developed. But that it was at this time claimed by him to be a subsisting contract, and that the company recognized its existence, is, as already said, evidenced by the resolution of the executive committee, and it was for the purpose of settling this controversy that the agreement of August 13th was entered into.

It is well settled that it is not necessary, in order to uphold a promise based upon the surrender and compromise of a claim, to

show that it is a valid claim or one that could be enforced at law. A promise made upon the settlement of disputes and to prevent litigation, is made upon a good consideration. The settlement of a doubtful claim will uphold a promise to pay a stipulated sum or do any other lawful act. White v. Hoyt, 73 N. Y., 505. And Mr. Chitty, in his work on contracts (vol. 4, p. 45), says: "And there can be no doubt that the resignation of a colorable claim conflicting with that of another person, and the settlement of the dispute between the parties without suit, constitutes a good consideration."

It, therefore, appears by documentary evidence, and which must control in view of the nature of the evidence given by Mr. Hogg on behalf of the plaintiff, and his evident want of memory as to the transaction to which he was testifying, that this agreement of August 13, 1881, was entered into as a settlement between Garri son and the plaintiff of the claims which had arisen out of the contract entered into on the 13th of June, 1881, and it is too late for us to try, or attempt to try, the controversy which was then disposed of, all the witnesses for the defendant being dead.

But even if this were not the case, the subsequent conduct of the plaintiff, by its long acquiescence in this agreement, and by the payment of the coupons upon the bonds held by Garrison for years after the plaintiff had been relieved from its alleged duress, is fatal to the present claim, because where it is sought to rescind a contract obtained by duress, the same must be done promptly as soon as the party seeking relief has been relieved from the duress. Bruce v. Davenport, 3 Keyes, 472; Gould v. Cayuga Co. Bank, 86 N. Y., 82; Baird v. Mayor, 96 id., 567. "Where a contract is sought to be vacated as procured under duress, the party wronged must proceed promptly. If he remains still and recognizes the contract by making payments thereunder, he must be held to have waived the duress. American & English Encyclopædia of Law, vol. 6, p. 88, title, "Duress."

Now it appears that from the 1st of October, 1881, to the 3rd of October, 1887, inclusive, the plaintiffs paid regularly the interest coupons upon these bonds. This long acquisecence is attempted to be excused by evidence from Mr. Hogg, who testified that prior to the 1st of October, 1881, he called upon Mr. Wm. R. Garrison and told him that the coupon interest on the 1st of October was maturing and that he did not intend to pay the same; that they had some further conversation in which Mr. Garrison repeated the statement that they had not done anything to earn these bonds (being seemingly particularly careful according to Mr. Hogg's testimony to decry his own title thereto on every occasion when he saw Mr. Hogg), and promised that if the coupons should be paid they would form a syndicate and take a large portion if not the whole of the bonds, provided they could earn their proper compensation out of it and earn these bonds and this interest, and that in consideration of his attempting to do that, Mr. Hogg paid the coupons and continued to do so up to the time of his death, while he was trying, and he did try as Mr. Hogg says, N. Y. STATE REP., VOL. XXXII. 24

to form a syndicate, and that Mr. Ward, after W. R. Garrison's death, continued his efforts. But although Ward died in August, 1884, and all attempts to form a syndicate then ceased in any event, the coupons seem to have been paid up to October 3, 1887, three years thereafter.

If these coupons were paid upon the agreement of Garrison that he would form a syndicate for the disposal of plaintiffs bonds, then a new contract was entered into confirming the old, and if this new contract was not fullfilled, the only remedy of the plaintiff rested upon the new contract, because after the old contract had been deliberately confirmed it could no longer be rescinded for duress.

This acquiescence subsequent to the alleged breach of the contract to form a syndicate is entirely unexplained, is entirely inconsistent with the theory that Garrison procured these bonds by duress, and should be held now, in view of the fact that all the parties who represented the interest of Mr. Garrison and had personal knowledge of these transactions are dead and cannot contradict the statements made by Mr. Hogg upon the stand, to preclude the plaintiff from now attempting to rescind the contract under which the bonds in question were received. The plaintiff could not wait for the purpose of seeing how the new agreement was going to turn out, but was bound to act at once.

Another objection is made to the plaintiff's recovery, and that is that there has been no offer to return the 2500 bonds received at the time of the execution of the contract of August 13th. A party seeking to rescind a contract must not only act promptly on discovering the ground of rescission but must restore or offer to restore whatever he has received under the contract. Schiffer v. Dietz, 83 N. Y., 300; Gould v. Cayuga Co. Bank, supra. He may not wait for the purpose of seeing how the contract is going to turn out and determine whether he may not receive a benefit from it, but he must at once act upon the discovery of the facts authorizing the recission and return all that he has received thereunder.

These principles are undoubtedly correctly stated. But the rule does not apply where if the contract sought to be rescinded had never been made the plaintiff would have been entitled to receive the payments made under the contract.

In such a case no offer to return is necessary, nor is it proper for the court to order restitution. This was distinctly held in the case of Allerton v. Allerton, 50 N. Y., 670. In that case the complaint alleged that plaintiffs, defendant and one McPherson were partners in conducting certain stock yards at Pittsburgh, Pa; that plaintiffs induced by fraudulent representations of the defendant (who had the management of the business) that the business was not profitable and that he in conjunction with them would sell out to McPherson, consented to unite with him in such sale upon being refunded the amount invested by them and that thereafter defendant represented that he had sold out and paid to plaintiffs the moneys advanced by them; that in fact the defendant did not sell but retained his interest and afterwards

acquired McPherson's interest; that the business was profitable and defendant had received large gains and profits, and the plaintiffs asked that the sale be declared void, that defendant account for all moneys received by him and that they have judgment for their portion of the profits under the agreement less the amount they had received. The case was tried by the court who fouud the fraud as alleged and decided that the plaintiffs were entitled to the share of the profits to which they were originally entitled less the amount received by them on the sale and that defendant execute a re-transfer to plaintiffs of the interest they had prior to the sale.

Judgment was entered upon the decision, which was reversed by the general term upon the ground that no fraud was shown and that McPherson, or his representatives, should have been joined as defendants, and that the plaintiffs should have tendered back the sums received by them on the sale. The court of appeals reversed the general term and affirmed the special term, holding that the fraud was established and that no tender of the amount was necessary before suit brought, as the judgment allowed it to defendant and this was in fact an actual return of the consideration paid, and that the question of the misjoinder or nonjoinder of parties not having been raised by the pleadings or upon the trial could not be raised upon appeal.

It seems to have been held in this case, therefore, that if the plaintiff is entitled to receive the money whether the contract was rescinded or not, no tender or offer to return is necessary, and it is only where the plaintiff's claim to the payment actually made rests upon the contract sought to be rescinded, and therefore its retention is not compatible with the rescission of that contract, that an offer to return is deemed necessary.

In the case at bar the question as to the necessity of the return of the bonds upon rescission arises only upon the assumption of the truth of Mr. Hogg's testimony. This testimony, if true, would show that it was conceded even by Garrison that he had no claim whatever upon the bonds and that the claim he made was without the shadow of foundation; and hence even if the contract of August 13th was rescinded he could not possibly have any right to the bonds returned by him to the company. This being the situation of the parties, if a right to rescind existed, ao offer to return seems to have been necessary.

This testimony of Mr. Hogg, however, as has already been said, in view of the documentary evidence clearly contradicting him, and the remarkable features of the evidence itself, is entirely unreliable.

We are of the opinion therefore that the judgment appealed from should be affirmed, with costs.

BARRETT, J.-I concur with the presiding justice, and desire to ald some additional considerations to those which he has so clearly stated.

It seems to me that the plaintiff proceeds upon an extreme view of the facts. Upon the evidence it is by no means (as contended

throughout) substantially a case of property obtained, so to speak, by a highwayman and restored in part upon an agreement to permit the retention of the remainder.

The bonds were lawfully in Mr. Garrison's possession, and he had a contract which, if executed, would have entitled him to precisely what he demanded, namely, these 100 bonds. The plaintiffs say that he had entirely neglected to proceed with the performance of that contract, and had consequently forfeited his right to these bonds. But the contract had not actually been cancelled when the plaintiff's president, without notifying Mr. Garrison, made other arrangements and himself effected the purchase, for the company, of the very rails called for by Garrison's contract. Upon being told of this, Mr. Garrison said he was glad, but insisted upon retaining the bonds which would have been his in case the contract had gone on and been executed. That, in legal effect, was a denial of forfeiture, an assertion that the contract was a valid, existing one, and that he, Garrison, would assent to its abrogation only upon receipt of the entire profits derivable therefrom. It is quite true that this claim was probably a slim one; that Garrison had been guilty of negligence; and it is not unlikely that the company could have abrogated the contract and recovered back all the bonds which he then held (as security) including these in question. Still, that cannot be treated as absolutely certain. There is evidence here tending to show such negligence, and even that it was intentional. But there is also evidence that the contract had not been cancelled, that the company recognized its existence by authorizing its chief officer to negotiate for cancellation, and that before such negotiations were complete, consequently before cancellation, the company had been placed in a false position by its president's purchases elsewhere.

Here certainly was ground for a contest. The company's position was a delicate one. The contract was alive and uncancelled. It had never notified Mr. Garrison that it would wait no longer. The execution of the contract had become entirely undesirable, owing to the new arrangements which had been made by its president. Under these circumstances, while Garrison's attitude was a hard and probably unconscionable one, it is absurd to liken his claim (to the full profits of the contract) to that of a highwayman demanding one's money or life. And it is therefore idle to rest the case upon legal analogies proceeding from this extreme view. A contract obtained by the highwayman is of course void from the beginning to the end. A payment on account of such a contract would be a gratuity, and not a ratification. Indeed, it would be ridiculous to talk of ratifying robbery. In the case at bar, however, there was certainly color for a contest; and, while Garrison's position, as testified to by Mr. Hogg, may have amounted in a legal sense to what is called duress, there can be no doubt that the antecedent facts called for prompt rescission the moment the company was freed from such duress. I do not mean that it was bound to go into a court of equity. But it certainly was bound to disaffirm. Here, however, there was active, deliberate and continuous ratification.