not inquire. In Plimley v. Westley (2 Bing. N. C. 249 [29 E. C. L. 322]), the plaintiff having received from the defendant, in payment for goods, a promissory note indorsed by the defendant, but not made payable to order, it was held that he was entitled to recover the price of the goods, notwithstanding he had omitted to give full notice. In the case at bar, I think, aside from the other proof, that the signature of the defendant upon the back of the certificate furnishes indisputable evidence that it was not received in payment, and hence that a suit for the price may be maintained. The certificate not being negotiable, the plaintiff could be guilty of no laches in not presenting it or notifying the defendant of its dishonor. The case is very like that of Monroe v. Hoff, above cited. As observed by the court in Soffe v. Gallagher, it seems clear that the taking of an absolute and unqualified guaranty that the note or other evidence of debt shall be paid, will not operate as payment but only as a security extending the term of credit. Such absolute liability is inconsistent with the idea of payment; for the guarantor, if liable, is so in respect of the original consideration, whether sued upon his guaranty or for the goods. Where there is a sale of goods and in consideration thereof an absolute undertaking for the payment of the price, the consideration may be resorted to as well as the express agreement. And in such cases it is immaterial whether the express contract be the note of the buyer or his absolute guaranty that the price shall be paid upon the note of a third.

person.

The plaintiff was; therefore, entitled to judgment upon the complaint as last amended. It was no departure, the cause of action being the very same, whether it was pursued in one form or the other.

The judgment must be reversed, and the cause remanded with directions that the judgment be entered for the plaintiff according to the demand of the complaint.

PAINE, J. I concur in the opinion of the chief justice, that upon the authorities, the action could be maintained for the original consideration; but do not wish to commit myself to the position that under our statute of frauds, and the decisions of this court, the action could, under any circumstances, be sustained on the guaranty.

COLE, J. I think the plaintiff can recover on the original consideration, but express no opinion upon the other questions discussed by the chief justice.

Judgment reversed, and cause remanded.1

§ 2. Tender.

KNIGHT v. ABBOTT.

30 VERMONT, 577.-1858.

Book account. Defense, tender. Judgment for defendant. Plaintiff appeals.

BENNETT, J. We think no valid tender was made. It seems all that was done was that the defendant remarked to the plaintiff, as the latter was passing by him, "I want to tender you this money before Mr. Dodge (at the same time holding in his hands thirty-five dollars and fifty cents), for labor you have done for me," but the plaintiff kept along with his team, making no reply. The defendant named no sum which he wished to tender, nor the amount he held in his hands, although it appeared subsequently that he had thirty-five dollars and fifty cents in his hands. It was for the defendant to make out affirmatively that he made a legal tender. The plaintiff was under no obligation to stop his team to make inquiries, or to have a sum of money tendered him; and unless the defendant specified the amount which he wished to tender, the plaintiff could not determine as to the sufficiency of the sum, and no refusal by the plaintiff to receive any specific sum of money could be predicated upon such an offer as the case shows was made. All that the case legally shows, is an intention on the part of the defendant, or rather a willingness, to make a tender. If no tender was made at the time suggested, there is no occasion to inquire about its being kept good.

1 "The distinction by the late learned Chief Justice Dixon, in his opinion in the case of Ford v. Mitchell, supra, as to the burden of proof where the note of a third person is received upon the sale of goods, or for an indebtedness contracted at the time, I am inclined to think is not supported by the weight of authority." — Taylor, J., in Hoeflinger v. Wells, 47 Wis. 628, 631. See Tayloe v. Merchants' Fire Ins. Co., 9 How. 390, ante, pp. 29, 34, 35; The Kimball, 3 Wall. 37.

The judgment of the County Court is reversed, and judgment for the plaintiff, for the sum reported by the auditors, and interest.

§ 3. Substantial performance.

NOLAN et al. v. WHITNEY.

88 NEW YORK, 648.-1882.

In July, 1877, Michael Nolan, the plaintiffs' testator, entered into an agreement with the defendant to do the mason work in the erection of two buildings in the city of Brooklyn for the sum of $11,700, to be paid to him by her in instalments as the work progressed. The last instalment of $2700 was to be paid thirty days after completion and acceptance of the work. The work was to be performed to the satisfaction and under the direction of M. J. Morrill, architect, to be testified by his certificate, and that was to be obtained before any payment could be required to be made. As the work progressed, all the instalments were paid except the last, and Nolan, claiming that he had fully performed his agreement, commenced this action to recover that instalment. The defendant defended the action upon the ground that Nolan had not fully performed his agreement according to its terms and requirements, and also upon the ground that he had not obtained the architect's certificate, as required by the agreement.

Upon the trial the defendant gave evidence tending to show that much of the work was imperfectly done, and that the agreement had not been fully kept and performed on the part of Nolan; the latter gave evidence tending to show that the work was properly done, that he had fairly and substantially performed his agreement, and that the architect had refused to give him the certificate, which, by the terms of his agreement, would entitle him to the final payment. The referee found that Nolan completed the mason work required by the agreement according to its terms; that he in good faith intended to comply with, and did substantially comply with, and perform the requirements of his agreement; but that there were trivial defects in the plastering

for which a deduction of $200 should be made from the last instalment, and he ordered judgment in favor of Nolan for the last instalment, less $200.

EARL, J. It is a general rule of law that a party must perform his contract before he can claim the consideration due him upon performance; but the performance need not in all cases be literal and exact. It is sufficient if the party bound to perform, acting in good faith, and intending and attempting to perform his contract, does so substantially, and then he may recover for his work, notwithstanding slight or trivial defects in performance, for which compensation may be made by an allowance to the other party. Whether a contract has been substantially performed is a question of fact depending upon all the circumstances of the case to be determined by the trial court. Smith v. Brady, 17 N. Y. 189; Thomas v. Fleury, 26 Id. 26; Glacius v. Black, 50 Id. 145; Johnson v. De Peyster, 50 Id. 666; Phillip v. Gallant, 62 Id. 256; Bowery Nat. Bank v. The Mayor, 63 Id. 336. According to the authorities cited, under an allegation of substantial performance, upon the facts found by the referee, Nolan was entitled to recover unless he is barred because he failed to get the architect's certificate, which the referee found was unreasonably and improperly refused. But when he had substantially performed his contract, the architect was bound to give him the certificate, and his refusal to give it was unreasonable, and it is held that an unreasonable refusal on the part of an architect in such a case to give the certificate dispenses with its necessity. All

concur.

Judgment affirmed.1

1 Accord: Katz v. Bedford, 77 Cal. 319; Hayward v. Leonard, 7 Pick. 180; Kelly & Bragg v. Bradford, 33 Vt. 35; Crouch v. Gutmann, 134 N. Y. 45, where Follett, C. J., dissenting, says: "The tendency, called equitable, of courts to relieve persons from the performance of engagements deliberately entered into, and in legal effect to make for litigants new contracts which they never entered into, and which it cannot be supposed they ever would have entered into, has been and is being carried to a length which cannot be justified in reason."

GILLESPIE TOOL CO. v. WILSON et al.

123 PENNSYLVANIA STATE, 19.-1888.

Assumpsit on a contract for drilling a well. Defense, nonperformance. Nonsuit. Plaintiff appeals.

Plaintiff agreed to drill for defendants a gas-well 2000 feet deep and five and five-eighths inches in diameter. In case salt water was struck, the well was to be eight inches in diameter in order to shut off the salt water. A well was dug to the depth of between 1500 and 1600 feet, when, owing to an accident, it had to be abandoned. Another well was then begun, and when at a depth of 800 feet plaintiff was notified that defendants held the contract was for the first well and would not be responsible for the second. Plaintiff continued and drilled the second well to a depth of 2204 feet, but struck salt water at a depth of 1729 feet, and to case this off reduced the hole to admit of casing four and one-quarter inch size. Plaintiff claimed a substantial performance on the ground that the well was for testing the territory, and that for this purpose a four and one-quarter inch hole was as good as a five and five-eighths inch, and that it would have been a useless expense to ream it out to the latter diameter when the experiment proved that the territory did not produce gas.

MR. JUSTICE STERRETT. Plaintiff company neither proved nor offered to prove such facts as would have warranted the jury in finding substantial performance of the contract embodied in the written proposition submitted to and accepted by the defendants. In several particulars the work contracted for was not done according to the plain terms of the contract. Nearly one-half of the well was not reamed out, as required, to an eight-inch diameter so as to admit five and five-eighths inch casing in the clear. About 180 feet of the lower section of the well also was bored four or four and one-quarter inches instead of five and five-eighths inches in diameter. In neither of these particulars, nor in any other respect, was there any serious difficulty in the way of completing the work in strict accordance with the terms of the agreement. To have done so would have involved nothing more than additional time and increased expense. The fact was