DISCHARGE BY PERFORM ANCE. When a contract has been fully performed according to its terms on both sides it is discharged. But the performance by one party of his promise, un less it is a promise given for an executed considera tion, does not necessarily discharge the contract, though it may do so.
Payment is a common mode of discharging a con tract by performance. The may contemplate the payment of a sum certain at a specified time, and payment of this sum is a performance of the contract. But the payment may result in performance by being substituted for some other act, or by being accepted in satisfaction of a breach of the contract. When a ne gotiable instrument is given in payment of a contract claim, if the parties expressly agree that it shall be a discharge of the existing liabilities, the note alone can be sued on. Otherwise the note is but a conditional discharge, and failure to pay it revives the previous lia bility.
A mere tender, whether of payment or of perform ance of an act, may discharge the person tendering from further obligation under the contract. Where the performance due is the payment of a sum of money, tender does not discharge the debt, and the debtor must remain ready and willing to pay, and if sued must pay the money into court, and such tender if full and sufficient will protect him from liability for costs.