1. We think that the questions controlling all the issues made in this record were determined, at the last term of this court, in a case between the same parties. That was a bill filed by the plaintiff in error in reference to this same receipt, and practically presented the principles which now guide us. It was then held that the legal effect of the agreement was, that Simmons took his notes as money and agreed to loan out that sum as her agent, and account for the proceeds on request, paying her the interest annually, and if, on a settlement, the proceeds should be in notes or fi. fas. on third persons, he undertook to guaranty their payment. It was meant by that, that he was to-give the guaranty when the notes or fi. fasmight bé turned over. If Mrs. Gordon was not entitled to *51such a guaranty thus executed, it would have been almost an impracticable matter for her to have made proof of the papers that were thus delivered to her, at least it would have burdened her right so as seriously to have affected it and to have lessened the value of the securities she received. With Mr. Simmons’ guaranty to or on the papers, they might and doubtless would have been increased in their negotiable value as well as their final worth. At least she bargained for this, and had a written promise of it. This gave her a legal right to demand it. Had the promise been that he would indorse any note which he turned over, to be secondarily liable thereon, it would hardly be doubted that Mrs. Gordon could have claimed the actual indorsement of such note by Simmons. It would not have been a good reply to her demand for it to say that the promise in the original agreement was sufficient. Nor is such a reply good when she contracted for the guaranty. There can be no difference.
2. This being so, when Mr. Simmons refused to give the guaranty at the time the demand was made, and his creditor refused to receive them without it in discharge of his agreement, there was a breach of the contract. The promissor had refused to deliver what he had agreed to deliver, and in the form it was to be when delivered, in discharge of a specific sum of money, and his liability then was to pay that sum. The damages, the amount due, were fixed by the contract, and on a breach thereof that sum is what is recoverable.
3. Under the construction we give the contract, a plea of tender of the notes and fi. fas. was not good unless it shows that the guaranty was also offered. For it could avail the defendant nothing by way of tender to offer what there was no obligation to accept.
4. Two of the pleas excepted to and stricken were somewhat in the nature of pleas of accord and satisfaction, or of payment, it is hard to say which. They were in fact neither, nor could the facts recited in them support a plea of either sort, unless they went further and were setup as having been accepted and recognized as a satisfaction and discharge' of de*52fendant’s liability under the original contract. So said this court, in substance, in the decision referred to, rendered at the last term, to-wit: “Any recognition by Mrs. Gordon of certain notes as hers, after the date of the agreement, or any consent by her that they should be altered in fo.rm or compromised by Simmons, cannot be taken as a waiver of the agreement, unless such was her intent.” After the holdings thus made on tins very contract, the plea should have averred that the transaction which it set out was intended to be in discharge, satisfaction or payment, of defendant’s liability.
5. The principle quoted above from the former decision also determines the merits of the plea contained in the proposition of defendant to amend his motion for a new trial. Even had he been entitled to make the amendment at that time under the facts stated, the plea could not have availed him. The pleas being properly stricken, the letter written by Mrs. Gordon, which was offered to be put in evidence, was irrelevant and inadmissible.
Judgment affirmed.
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