Crary v. Bowers

Citations

• 20 Cal. 85

Syllabus

<p>’ A holds a note against B for $4,000, secured by a mortgage on B’s mining claim. The note being due, B agrees with 0 to sell the claim to him, in consideration of C’s payment of the debt to A. B and C execute an agreement in writing, to which A assents, that C shall pay A $400 in cash, $1600 within two days, and for the remaining $2,000 give his note to A, payable in four months. C pays the $400, and executes the note, which A receives. A retains his original note and mortgage, and there is no understanding that these shall be released: Held, that this transaction operated as a conditional payment of the original debt; that the debt was not thereby extinguished, but the remedy upon it suspended until default on the part of C in making his payments.</p> <p>Held, further, that C failing to pay the $1600 at the time agreed, A might thereupon, for this breach, consider the entire contract annulled, and without waiting for the maturity of C’s note, maintain an action against B upon the original note for the whole balance unpaid.</p>