Moran, P. J.
This action was brought to recover a balance of rent alleged to be due under a certain lease between the parties. Said lease was for a term of five years from August 11, 1885, at a rental of $300 per annum, payable at the rate of $25 each month in advance, and contained the following stipulation :
“ It is also further agreed that the party of the second part, if the mills of the Union Steel Company (formerly Union Iron & Steel Co.) resume operations to their full capacity during said term, under whatsoever management, he shall pay as rental the sum of $10 per month instead of $‘25, as above specified, from and during the time said mills resume their operations, and until the end of this lease; but if said mills again suspend operations, then said rental shall be $25 per month from the date of such suspension.”
Appellee claimed that the mills resumed operations in May, 1886, and appellant denied that there was then, or at any other time prior to the commencement of the suit, any such resumption of operations in the mills, as made him liable to pay the increased rent under the terms of the lease.
Appellant tendered to appellee $25, in payment of the rent for the first month after the dispute arose, as the whole rent due from him, and she refused to receive the sum so tendered, except in part payment of said rent, and each succeeding month an additional $25 was tendered and refused until the eleventh month, when he tendered to her $275, saying: “ Here is your money in full,” and she took it and kept it, and the next month he again tendered her $25 as in full of the rent, and she took it.
The claim that the judgment is erroneous and should be reversed is based on two grounds, which we will consider in the following order:
1st. It is contended that the receipt of the money tendered by appellant created a bar to an action for any further rent, for the months for which said rent so received was tendered, and the court erred in instructing the jury that “the acceptance of $25 per month would not prevent a recovery unless the same was accepted upon some new consideration or agreement.”
The argument is, that the specific tender by the lessee, with acceptance by the lessor, without dissent from the terms of the tender, constituted an accord and satisfaction between the parties. The rule invoked has application where the claim is for an unliquidated amount, or the thing paid or given in satisfaction of a liquidated amount is personal property or securities, something other than money; and such are the cases cited and relied on by appellant. Adams v. Helm, 55 Mo. 468, was where promissory notes for a Certain amount secured by trust deed, were tendered in payment of an existing indebtedness, and were received from the hands of the person making the tender, with the remark that they would be held as collateral to the indebtedness.
The court held that as the notes were tendered in satisfaction of the debt, they must be held to be so received. Nor is the case one depending on the doctrine of accord and satisfaction; for there was an agreement between the parties that such notes secured by trust deed would be received by the creditor as cash. Jenks v. Burr, 56 Ill. 450, was a suit to recover for work and materials where the amount was unliquidated and in controversy between the parties. What the court says has no application to a claim ascertained and liquidated between the parties. There is no magic in a tender in such case. The question always is, whether the offer and acceptance amounted to an accord and satisfaction, and if the claim is unliquidated and in dispute, the settlement of it by a tender on one side and acceptance on the other, forms a good consideration for the agreement of accord and satisfaction. But the payment in money of a part of the whole debt is not a good satisfaction, even if accepted, when the amount of the debt has been ascertained and liquidated, because to accept less than the real debt is a mere nudum pactum. Payment of a less sum where a release is given will constitute a bar to the recovery of the balance, because the release is under seal, which, of itself, implies a sufficient consideration.
“It is a general rule” (said McAllister, J., in Capital City M. F. Ins. Co. v. Detwiler, 23 Ill. App. 659), “that where the amount of the debt is fixed and certain, or capable of being reduced to certainty by computation, the payment of a part of such debt can not have the effect of an accord and satisfaction without a release under seal; but where the amount or debt is unascertained and not fixed or certain, the rule is otherwise, and the payment and acceptance in "satisfaction of a less sum will support a plea of accord and satisfaction.”
Now, suppose the fact to be that the conditions existed which made it the duty of appellant to pay the $40 per month, agreed upon in the lease, could the acceptance, by appellee, by an amicable agreement, of a less sum, bar her right to recover the balance? The authorities with one accord answer no. “ And it was resolved by the whole court that payment of a lesser sum on the day, in satisfaction of a greater, can not be any satisfaction for the whole, because it appears to the judges that by no possibility a lesser sum can be a satisfaction to the plaintiff for a greater sum.” Pennel's Case, 3 Coke, 238.
But the tender and acceptance of a lesser sum only amount to an agreement; and unless there is some new consideration, must be as ineffectual to discharge the debt as an agreement otherwise formed. To amount to an accord and satisfaction, the creditor must receive some actual benefit that he would not otherwise have had. Am. & Eng. Ency. of Law, title, Accord and Satisfaction, and cases there cited.
“ If the demand to be satisfied is a definite sum of money, and the sum to be paid in satisfaction also money, the satisfaction must equal the claim; but if the claim is for unliquidated damages, or the thing done or given is not money, the question of adequacy does not arise. It is enough that something substantial, which one party is not bound by law to do, is done by him, or something which he has a right to do he abstained from doing at the request of the other party. Watson v. Elliott, 57 N. H. 511.
How it is very clear that appellant was bound by his lease to pay the $25 per month at all events. That amount was not in dispute, but was ascertained, and its payment was made dependent on no contingency. How can his doing of that, which lie was bound by law to do, be made the consideration for discharging him from doing something else which he agreed to do? A new consideration for his paying the $25 per month was unnecessary. A new agreement by him to pay it would not be binding upon him, Runnamaker v. Cordray, 54 Ill. 303.
Therefore in taking the money tendered, no matter what the conditions were, appellee got nothing hut that to which she had a prior title, a prior right, and receiving that could not be receiving a satisfaction for something else.
If, therefore, the plaintiff had a cause of action for the additional rent, it could only be extinguished by a satisfaction which she agreed to accept, but such agreement must be on a new and sufficient consideration. Cumber v. Wane, 1 Smith’s Leading Cases, 606, and notes; Neal v. Handley, 116 Ill. 418; Hayes v. Massachusetts Life Ins. Co., 125 Ill. 626, 638; Rose v. Hall, 26 Conn. 392; Miller v.
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Moran, P. J.
This action was brought to recover a balance of rent alleged to be due under a certain lease between the parties. Said lease was for a term of five years from August 11, 1885, at a rental of $300 per annum, payable at the rate of $25 each month in advance, and contained the following stipulation :
“ It is also further agreed that the party of the second part, if the mills of the Union Steel Company (formerly Union Iron & Steel Co.) resume operations to their full capacity during said term, under whatsoever management, he shall pay as rental the sum of $10 per month instead of $‘25, as above specified, from and during the time said mills resume their operations, and until the end of this lease; but if said mills again suspend operations, then said rental shall be $25 per month from the date of such suspension.”
Appellee claimed that the mills resumed operations in May, 1886, and appellant denied that there was then, or at any other time prior to the commencement of the suit, any such resumption of operations in the mills, as made him liable to pay the increased rent under the terms of the lease.
Appellant tendered to appellee $25, in payment of the rent for the first month after the dispute arose, as the whole rent due from him, and she refused to receive the sum so tendered, except in part payment of said rent, and each succeeding month an additional $25 was tendered and refused until the eleventh month, when he tendered to her $275, saying: “ Here is your money in full,” and she took it and kept it, and the next month he again tendered her $25 as in full of the rent, and she took it.
The claim that the judgment is erroneous and should be reversed is based on two grounds, which we will consider in the following order:
1st. It is contended that the receipt of the money tendered by appellant created a bar to an action for any further rent, for the months for which said rent so received was tendered, and the court erred in instructing the jury that “the acceptance of $25 per month would not prevent a recovery unless the same was accepted upon some new consideration or agreement.”
The argument is, that the specific tender by the lessee, with acceptance by the lessor, without dissent from the terms of the tender, constituted an accord and satisfaction between the parties. The rule invoked has application where the claim is for an unliquidated amount, or the thing paid or given in satisfaction of a liquidated amount is personal property or securities, something other than money; and such are the cases cited and relied on by appellant. Adams v. Helm, 55 Mo. 468, was where promissory notes for a Certain amount secured by trust deed, were tendered in payment of an existing indebtedness, and were received from the hands of the person making the tender, with the remark that they would be held as collateral to the indebtedness.
The court held that as the notes were tendered in satisfaction of the debt, they must be held to be so received. Nor is the case one depending on the doctrine of accord and satisfaction; for there was an agreement between the parties that such notes secured by trust deed would be received by the creditor as cash. Jenks v. Burr, 56 Ill. 450, was a suit to recover for work and materials where the amount was unliquidated and in controversy between the parties. What the court says has no application to a claim ascertained and liquidated between the parties. There is no magic in a tender in such case. The question always is, whether the offer and acceptance amounted to an accord and satisfaction, and if the claim is unliquidated and in dispute, the settlement of it by a tender on one side and acceptance on the other, forms a good consideration for the agreement of accord and satisfaction. But the payment in money of a part of the whole debt is not a good satisfaction, even if accepted, when the amount of the debt has been ascertained and liquidated, because to accept less than the real debt is a mere nudum pactum. Payment of a less sum where a release is given will constitute a bar to the recovery of the balance, because the release is under seal, which, of itself, implies a sufficient consideration.
“It is a general rule” (said McAllister, J., in Capital City M. F. Ins. Co. v. Detwiler, 23 Ill. App. 659), “that where the amount of the debt is fixed and certain, or capable of being reduced to certainty by computation, the payment of a part of such debt can not have the effect of an accord and satisfaction without a release under seal; but where the amount or debt is unascertained and not fixed or certain, the rule is otherwise, and the payment and acceptance in "satisfaction of a less sum will support a plea of accord and satisfaction.”
Now, suppose the fact to be that the conditions existed which made it the duty of appellant to pay the $40 per month, agreed upon in the lease, could the acceptance, by appellee, by an amicable agreement, of a less sum, bar her right to recover the balance? The authorities with one accord answer no. “ And it was resolved by the whole court that payment of a lesser sum on the day, in satisfaction of a greater, can not be any satisfaction for the whole, because it appears to the judges that by no possibility a lesser sum can be a satisfaction to the plaintiff for a greater sum.” Pennel's Case, 3 Coke, 238.
But the tender and acceptance of a lesser sum only amount to an agreement; and unless there is some new consideration, must be as ineffectual to discharge the debt as an agreement otherwise formed. To amount to an accord and satisfaction, the creditor must receive some actual benefit that he would not otherwise have had. Am. & Eng. Ency. of Law, title, Accord and Satisfaction, and cases there cited.
“ If the demand to be satisfied is a definite sum of money, and the sum to be paid in satisfaction also money, the satisfaction must equal the claim; but if the claim is for unliquidated damages, or the thing done or given is not money, the question of adequacy does not arise. It is enough that something substantial, which one party is not bound by law to do, is done by him, or something which he has a right to do he abstained from doing at the request of the other party. Watson v. Elliott, 57 N. H. 511.
How it is very clear that appellant was bound by his lease to pay the $25 per month at all events. That amount was not in dispute, but was ascertained, and its payment was made dependent on no contingency. How can his doing of that, which lie was bound by law to do, be made the consideration for discharging him from doing something else which he agreed to do? A new consideration for his paying the $25 per month was unnecessary. A new agreement by him to pay it would not be binding upon him, Runnamaker v. Cordray, 54 Ill. 303.
Therefore in taking the money tendered, no matter what the conditions were, appellee got nothing hut that to which she had a prior title, a prior right, and receiving that could not be receiving a satisfaction for something else.
If, therefore, the plaintiff had a cause of action for the additional rent, it could only be extinguished by a satisfaction which she agreed to accept, but such agreement must be on a new and sufficient consideration. Cumber v. Wane, 1 Smith’s Leading Cases, 606, and notes; Neal v. Handley, 116 Ill. 418; Hayes v. Massachusetts Life Ins. Co., 125 Ill. 626, 638; Rose v. Hall, 26 Conn. 392; Miller v. Holden, 18 Vt. 337.
Counsel’s contention as to the effect of the tender and acceptance can not be sustained; and the court was correct in giving the instruction complained of.
2d. We are of opinion, however, that the contention that the verdict is not warranted by the evidence, is sustained. Before appellee could be entitled to recover $40 per month rent, it must be shown that the mills did resume operations to their full capacity. The* proof shows that the mills when they suspended prior to the execution of the lease, were operating 2,231 men. The mills were rebuilt in part and thereafter employed 1,500 to 2,000 men; at no time after resuming did they exceed 2,000, and the average number employed was not over 1,700.
What was known as the Molten Mill never did resume, but its space was devoted to warehouse purposes, and only six men were at work in it, where before the suspension 400 to 500 men were employed.
When the business of appellant (saloon keeping adjacent to the works) is taken into consideration, it is rendered probable and almost certain that what the parties meant by “ the mills resuming to their full capacity,” was that they should resume the employment in the works’ of substantially the same number of men that had been employed before the suspension. Capacity could not have had reference to output, because that could be of no interest to the parties.
The resumption by the mills to their full capacity was a condition precedent to appellant’s liability for the increased rent. In such cases the condition precedent must be exactly-performed or fulfilled, before the liability contingent thereon can be enforced. Oakley v. Morton, 11 N. Y. 25; 7 Wait’s Actions and Defenses, 356.
Proof of the happening of the event strictly as provided for in the condition, will not be dispensed with although the event has become impossible without the fault of the plaintiff.
So this strict rule would operate under this clause of the lease against both parties. If appellant had become liable for the increased rent, in accordance with the terms of the condition, he could not relieve himself by proof that the mills had again partially suspended operations. He must show a total suspension in order to reduce the rent, and relieve himself from the performance of his contract. Bruce v. Snow, 20 N. H. 484; Jones v. U. S., 96 U. S. 24.
The appellee could have made the contract differently, but it is not the question whether the contract was wise or unwise. The parties made a contract with reference to a matter about which it was lawful for them to contract, and neither court nor jury has the right to soften its conditions or alter its terms. Townsend v. Water Com., 63 Ill. 26.
The evidence did not authorize the verdict that the mills had resumed to their full capacity, and the judgment must? therefore, be reversed and the case remanded*.
Reversed and remanded.