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The opinion of the court was delivered by

Wilson, J.

The auditor’s report finds that on the 20th day of August, 1861, the defendants made a general assignment of their property for the benefit of their creditors. The plaintiff was, at that time, a creditor, whose debt amounted to the sum of $206.25. In the fall of 1862 the defendants, with the aid of their friends, who furnished part of the funds for the purpose, undertook to compromise with their creditors, by paying twenty-five cents on the. dollar, and as evidence of such compromise, as well as of the per cent, to be paid and of the time of payment, the instrument marked A. was drawn up to be signed by them. The instrument, upon the face of it, purports to be an agreement between the plaintiff and Sykes, but the question *577•as to its real or beneficial parties must be determined by the facts reported by the auditor. It appears that Sykes in making the compromise acted as the agent of the defendants, and for their exclusive benefit. Sykes would not be at liberty, as against the defendants, to Tecover more of them than he had paid or become liable to pay the plaintiff by reason of his assignment; and whether the plaintiff has •a right of recovery against the defendants for more than the twenty-five per cent, of the original claim must depend upon the validity of the release in question. It is insisted by the plaintiff’s counsel that the instrument never took effect as a release of any part of the debt. The general rule of law, as applicable to such instrument, is that it takes effect upon delivery; and it is important to consider whether there is anything upon the face of the instrument or extraneous which requires it to be made an exception to the general rule in respect to the effect of its delivery.

It appears that the plaintiff executed the instrument on the 15th day of February, 1863, which was fifteen days after the time named in the instrument for making payment had expired. The plaintiff by executing the instrument after the time therein limited for making payment had expired, adopted it in every particular except as to the time when the twenty-five per cent, should be paid, and it became his instrument and deed in law, the same as if he had executed it on or before the 1st day of February. The instrument did not require the plaintiff to deliver it until he had received payment of the per cent. •stipulated to be paid. He might have insisted upon payment at the time of the execution of the instrument, as a condition upon which •he would deliver it; but it appears that the plaintiff at the time he signed the instrument added to his signature thereon the words and figures “ paid February 15, $222.87,” which was the amount of his •original claim, including interest to that time, thereby indicating that the condition upon which the assignment was made, had been performed. The delivery of the instrument was absolute, and it does not appear that its execution or delivery was procured by fraud. It would seem that the plaintiff, at the time he delivered the instrument, relied upon an express or implied promise that Sykes or the defendants would thereafter pay the stipulated per cent., and it is evident that the plaintiff, at that time, did not make nor intend to make *578the validity of the instrument depend upon the payment of the stipulated sum. We think the instrument operated as a release of the original debt, and its validity is in no way or manner affected by the circumstance that the twenty-five per cent has not been paid.

It is urged by the plaintiff’s counsel that the instrument does not constitute a defence at law, that if the defendants have any remedy it must be in chancery. This conclusion is not warranted by the facts in the case. Sykes has no interest in the claim ; the suit was brought for the benefit of the plaintiff, and under such circumstances the instrument operates as a release of the debt, and not as an assignment of it to Sykes.

The defendants, in consideration of the release, became liable to pay the plaintiff the stipulated per cent, of the original debt. It does not appear that the parties agreed upon the time at which payment should be made, and in the absence of any agreement in respect to the time of payment, it would be payable on demand. It appears that within a few days after the execution and delivery of the release, the defendants offered to pay the plaintiff the amount then due to him by the terms of the compromise, but he did not accept it. The facts reported by the auditor do not show a valid tender. The money Was not produced and proffered to the plaintiff, n<3l- was its production waived by him ; and we think the plaintiff is entitled to recover the twenty-five per cent'.

The judgment of the county court is reversed and judgment for the plaintiff for the sum of $65.10. The plaintiff to recover no costs in this court and the defendants’ costs in this court to be deducted.

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