of the release, the contract between the parties was not an exception to the rule. They did not bargain solely for the exchange of promises; they sought, in addition, reciprocal performances of acts promised. These performances were the concurrent conditions of the reciprocal duties of the parties. The duty of each party's performance was conditioned on a tender by the other party of the return performance in execution of a simultaneous exchange. See 3 Corbin on Contracts (1951) § 656; Restatement, Contracts, § 267(c).
However, when Meier signed the releases, he or his counsel anticipated that payment would be made subsequent to the signing. On May 14, 1955, as has been indicated, counsel for Meier enclosed the releases and stipulations to dismiss with the instructions to make the check payable to them alone as attorneys. On May 19, 1955, as likewise has been indicated, the check in the sum of $ 600, the consideration for the releases, was made payable to Granville H. Meier and his attorneys, Freedman, Landy and Lorry. This, we think, indicated an intention on the part of Texaco to require the endorsement of Granville H. Meier as a condition precedent to the closing out of the transaction and in order to make payment complete.
While, as has been indicated in the affidavits, certain practices prevail in the City of Philadelphia with respect to the exchange of releases and the payment by check, the acceptance and the receipt of the check may be tantamount to payment by the employer where the check is made payable to counsel, but here we feel that naming Meier as a payee in the check created an entirely different situation, and, as heretofore referred to, indicated a specific intent on the part of Texaco to have Meier's signature on the check.
The receipt and retention of the check by Meier's counsel, even for a period as here of seven months, did not amount to payment, the reciprocal act for which Meier bargained. The law of Pennsylvania, New York and most other states is that where a check is received by the payee, there is a presumption, in the absence of an agreement to the contrary, that it was received as a conditional payment until it is honored and paid. Diskin v. City of Philadelphia, Police Pension Fund Ass'n, 1951, 367 Pa. 273, 80 A.2d 850; Wilson v. United States, D.C.W.D.Pa.1956, 144 F.Supp. 851; Reitz v. Krystofowicz, 166 Misc. 814, 1938, 4 N.Y.S.2d 410; 40 Am.Jur., Payment, 72; 70 C.J.S. Payment 24, 105. However, since here there was no agreement by the payee that would in any wise indicate payment and, further, since mere acceptance of a check does not, in the absence of such an agreement or of circumstances from which such agreement is necessarily inferred, constitute payment of an obligation, it cannot be said that there was payment, inasmuch as the circumstances here would plainly indicate payment was not to be inferred until the endorsement of the check by Meier. Mittry Bros. Const. Co. v. United States, 9 Cir., 75 F.2d 79, 82.
Accordingly, the petition to set aside the voluntary dismissal and to restore the action to the trial list is granted.