Stockton Sav. & Loan Soc'y v. Hildreth , 53 Cal. 721 ( 1879 )

By the Court :

The consideration for the promise of the defendant was the release of his brother, E. J. Hildreth, from his liability upon his promissory note, made by him jointly with one William Helm to the plaintiff; and by the terms of the agreement the plaintiff agreed that, with the consent of Helm, upon receiving fifty cents upon the dollar of the note, it would release E. J. Hildreth from all liability upon the note. The payment by the defendant and the release by the plaintiff are concurrent conditions, and are to be performed at the same time. (Civil Code, sec. 1437.) Without discussing the question whether the consent on the part of Helm, not to be released from his liability on the note; was required to be procured before the agreement could by its terms become obligatory upon the parties to it, it is sufficient to say that the plaintiff could not recover upon the agreement without performing, or offering to perform, the condition on its part—the execution of the release of E. J. Hildreth. The complaint does hot allege a delivery nor an offer to deliver such release, and the demurrer should have been sustained.

Judgment reversed, and cause remanded, with directions to sustain the demurrer to the complaint. Remittitur forthwith.