#### Abijah Mann, Jr. plaintiff and appellant, *vs.*Lewis Curtis, executor, &c. of Joseph D. Beers, defendant and respondent.

In January, 1841, the North American Trust and Banking Co. agreed to receive from B. who was then indebted to that Company over $200,000, upon such claim, certain certificates of indebtedness of the company then held by the state of Indiana, to the amount of $175,000, if delivered within a certain time. In September following the state of Indiana, through its fund commissioner, promised to *allow and pay*to W. twenty-five per cent commissions on any amount which might be recovered on such indebtedness of the company ; there being an understanding between B. and W. that such commissions should he divided between them equally. Soon afterwards, the state of Indiana placed the said certificates in the hands of the plaintiff, and authorized him to permit B. to use them in payment of his debt to the company. Within the time limited for that purpose by the agreement between B. and the company, the former, with the permission of the plaintiff, tendered to the latter, (through its receiver,) the whole of the said certificates, in payment of his debt to the latter. In May, 1844, W. and B. transferred to 'the plaintiff one third of the commissions covered by the agreement between W. and the state. In November, 1847, W. delivered to the state of Indiana an instrument signed by him, releasing and transferring to the state, all his claim and interest under the agreement of September, 1841, provided the plaintiff and B. would assent thereto; which assent was given. In January, 1849, the state of Indiana, by its fund commissioner, assigned and transferred the said certificates, and all its claims against the company, to a third person, who subsequently assigned the same to the plaintiff. B. having died in 1863, this action was commenced in 1865 against the defendant, as his executor; the plaintiff claiming 'to be entitled to all the rights of the state of Indiana, as against B., and to have judgment against the defendant, as such executor, for the amount of the certificates, with interest; or, if such claim should be barred by the statute of limitations, then for two thirds of the commissions, which were to be paid by the state of Indiana to W. under the agreement of September, 1841.

*Meld*1. That the referee erred *in*not finding that the tender of the certificates to the receiver, by B. constituted a payment to the N. A. Trust and Banking Co. within the contemplation of the agreement between such company and B. For, although B. might waive such tender so far as his own interests were concerned, such waiver could not affect the rights of the state, (which had already attached,) to recover from B. the amount of the certificates which he had tendered to the receiver of the company under the agreement; which tender, « *instanti,*operated as, and was an extinguishment, *pro tanto,*of the debt of the company against B. in law and in equity, and extinguished also the liability of the company upon the certificates.

*1292. No reinstatement of that debt by any agreement between the company and B. could deprive the state of the right which had already become vested in it to recover from B. the value of such certificates, and that unless the tender operated as a payment of the debt owing by B. to the company, a judgment in favor of the defendant was correct; inasmuch as B. did not become the debtor of the state, nor were any commissions earned,

3. Even though the finding of the referee, in that regard, was erroneous, the plaintiff could not recover. .

(Before Barbour, McCunn and Jones, JJ.)

Heard March —, 1868;

decided April 16, 1868

Appeal from a judgment entered on the report of a referee.

The facts in this case, so far as this appeal is concerned, are as follows:

In January, 1841, an agreement was entered into between the North American Trust and Banking Company and Joseph D. Beers, who was then indebted to such company in an amount exceeding $200,000, whereby the former agreed to receive from Beers, upon such claim, certain certificates of indebtedness, theretofore issued by the company, then held by the state of Indiana, to the amount of $175,000, if delivered within a certain time.

In September, 1841, an agreement was made between the state of Indiana, through its fund commissioner, (Noah Noble,) and Jabez M. Woodward, whereby the former undertook and promised to *allow and pay*to the latter twenty-five' per cent commissions on any amount which might be recovered on the claim of the state against the company; and there was an understanding between Beers and Woodward that such commissions should be divided between them equally.

Soon after that, the state of Indiana placed the said certificates of the company in the hands of the plaintiff, and authorized him to permit Beers to use them in payment of his debt to the company.

Within the time limited for that purpose, by the agreement between Beers and the company, the former, with the *130permission of the plaintiff, offered and tendered to the latter (through its receiver) the whole of the said certificates, in payment of his debt to the latter.-

After that, and in May, 1844, Woodward and Beers transferred to the plaintiff one third of the commissions covered by the agreement between Woodward and the state, after deducting therefrom about $1500.

In November, 1847, Woodward delivered to the state of Indiana an instrument in writing, duly executed, of .which the following is a copy :

“ In consideration of twelve hundred dollars, received of M. G-. Bright, fund commissioner, &c. I hereby release and transfer all my claim and interest by virtue of the annexed agreement between me and Noah Noble, dated 17th September, 1841, to said M. G-. Bright, fund commissioner, &c. provided that A. Mann, Jr. and J. D. Beers shall assent to the same by signing such consent hereunto.

Witness my hand and seal this 2d day of November, 1847. J. M. Woodward.-

Witness—

Richard Varice.”

“Having received our proportion of the above $1200, we hereby assent to the above release and assignment and transfer,

2d November, 1847. A. Maw, Jr.

J. D. Beers.”

In January, 1849, the state of Indiana, by its fund commissioner, assigned and transferred the said certificates of indebtedness, and all its claims against the North American Trust and Banking Company, to Charles Fincke, who, subsequently, assigned the same to the plaintiff.

Beers died in 1863, and the defendant was his executor. This action was commenced in 1865.

The plaintiff claims that he thus became entitled to all the rights of the state of Indiana, as against Beers; and *131that he should have judgment in this action against the executor of the latter, for the amount of the said certificates, with interest; or, if such claim shall be deemed to be barred by the statute of limitations, then, for two thirds of the commissions which were to be paid by the state of Indiana to Woodward, under the agreement of September, 1841. The referee found, as a conclusion of law, from the above facts, that the plaintiff was not entitled to judgment against the defendant for the cause of action above mentioned, being the first cause of action mentioned in his complaint; and from the judgment entered upon the report, the plaintiff appealed.

*A. Mann, Jr.*appellant, in person.

*Charles F. Sanford,*for the respondent, defendant.

By the Court, Barbour, J.

It is proper to say that the referee has not found, as a fact, in the case, that the tender of the certificates to the receiver by Beers, constituted a payment to the Eorth American Trust and Banking Company, within the contemplation of the agreement between such company and Beers. But I am of opinion that the referee erred in this. For, although Beers might subsequently waive such tender, so far as his own interests were concerned, as he probably did, by paying the claims of the company with funds other than the certificates, such waiver could not affect the rights of the state, which had already attached, to recover from Beers the amount of the certificates which he had tendered to the representative of the company under the agreement, and which tender, *eo instanti,*operated, and was an extinguishment, *pro*tanto, of the debt of the company against Beers, in law and in equity, and, of course, extinguished also the liability of the company upon the certificates. Eo reinstatement of that debt, by any agreement between the company and Beers, could deprive the state of the right, which had already become *132vested in it, to recover from Beers the amount of such certificates.

Of course, unless the tender in question operated as a payment of the debt owing by Beers to the company, the judgment should stand; inasmuch as Beers did not become the debtor of the state, nor were any commissions earned. So, too, even though the finding of the referee, in that regard, was erroneous, as we think it was, there are, still, a few insurmountable difficulties which stand in the way of the plaintiff’s recovery.

*First.*The right of the state to recover from Beers the amount of the certificates because of his appropriation of the same to his own use, accrued upon and by the tender thereof to the company, and when that tender was made; and, therefore, this claim is barred by the statute of limitations.

*Second.*So, the right of Woodward, Beers, and the plaintiff to recover for the commissions was based upon the absolute promise of the state, contained in its agreement with the former, to pay twenty-five per cent commissions upon the collection of the certificates, and accrued at the same time, and because of the same act, and is, in like manner, barred. The right of the three to recover against the state for the commissions it had undertaken to pay, became absolute upon and by the tender.

*Third.*The instrument executed by Woodward, Beers and the plaintiff to the state of Indiana, on the 2d of November, 1847, not only assigns and transfers to the state their claims against it because of the commissions now claimed, thereby producing, in law, a complete relinquishment and discharge of their claims against the state, but such instrument expresses upon its face, an absolute and unconditional release and discharge of the state from all claims of all-and either of them, because of such commissions, for a full and sufficient consideration, received by each.

*Fourth.*No claim of the state of Indiana against Beers, whether including the said commissions or otherwise, was assigned by such state to the plaintiff or any other person, *133so far as appears in the case; the assignment and transfer made by the state to Fincke on the 31st of January, 1849, and, afterwards, by the latter to the plaintiff, being merely a transfer to him of all the claims of the state against the North American Trust and Banking Company.

The judgment entered upon the report of the referee, touching this cause of action of the plaintiff, should be affirmed, with costs.