| Vt. | Jan 15, 1827
delivered the opinion of the court.
In this case the plaintiff! have declared upon a bond, setting " out the condition and alleging specific acts of precedent performance on their part in exact compliance with the terms of the condition. From the evidence offered on trial by die defendant, if not from that produced by the plaintiffs, it is now to be understood that the performance of those acts was different in point of time from that required by the contract and avered in the declaration. Whether a bond with condition wherein precedent acts, specific as to the time and manner of their execution, are required to bs-performed by the obligee, is upheld, so that at law die penalty remains in force, by acceptance of performance of those acts after the time for their execution has elapsed by the terms of the contract ; and if so, whedier in declaring on such bond the party may allege his own performance of precedent acts according to the terms of the contract, or must state the variation in time or other circumstance,avering the consent of the other party to such alteration, are questions of sufficient importance and difficulty to form die point of decision, whenever a cause shall occur resting solely or chiefly on these questions. The present ease does not necessarily depend upon either of them. Assuming then what is not decided, except for the purpose of reaching the point on which we choose to turn this case, that both the foregoing questions are solved in favor of die plaintiffs, it remains to be considered whether sufficient appears in the case to entide the defendant to a new trial.
It may perhaps be doubted, whether on trial upon the plea of non est factum die plaintiffs were bound to prove their allegations, as to die payment of the notes, and whether the defendant’s notice was authorised by die statute $ but as the plaintiffs conceived.
An obvious distinction between a literal performance of a condition precedent and one which is not so, consists in this; that one is the exercise of a right, while the other depends upon a voluntary acceptance. In one case no question as to the intent of the apt can be raised; its effect upon the ..contract is certain and conclusive to its proper extent, and nothing depends on the will of the parly to whom the performance is rendered; while in the other all depends upon the intent, the party to whom performance is offered, may refuse his acceptance, or stipulate the terms with which it shall be qualified. It follows'that the acceptance of payment in this case was not of itself conclusive as to the intent with which it was made or received. Unexplained it may furnish prima facie evidence that the parties intended to revive the bond in its original terms, but it does not‘estop the defendant from showing the purpose to be different. Had the performance been literal the evidence arising from it would have been conclusive ; in the present case, it was only presumptive. The evidence offered was proper to have gone to the jury, as tending to ascertain the purpose of the parties in relation to the payments so long deferred, and to repel a presumption that the bond in its penal terms was meant to be continued in force,
A part of the evidence was not contained in the notice, and therefore would seem at first view inadmissible. But when the mode of declaring is recollected the objection vanishes. The plaintiffs had given no notice that they should rely on proof of payment made after the day to satisfy their allegations of payment on the day ; and if they are allowed thus to depart from the aver-ments in their declaration, the defendant must be allowed to show the facts attending the payments when received, though such facts are not covered by his notice. The verdict must be set aside and a new trial granted.