In general If the contract pre-scribes the method of payment, such method must be followed, at least substantially, unless it is waived by the parties.1 If the contract provides for making payment of a penalty by deducting from the last instalment due to the contractor, such penalty can not be enforced if such last payment is never made.2 If by the terms of the contract between the principal and the agent, the agent is to be paid out of the last two instalments to be paid him by the adversary party, the agent has no claim against the principal unless such instalments are paid.3 If the contract between a building association and a borrowing member treats the amount borrowed as a separate debt from the subscription for the stock, payment upon the stock can not be regarded as a payment of the debt, although by the terms of the contract the stock, when fully paid up, is to be applied in payment of the debt.4 A party can not be deprived of a right given to him by contract to make payments in a specific manner. A, the owner, agreed with B, the contractor, that A should have the right to pay direct to laborers and materialmen and have such payments credited to his account with B. A can not be deprived of this right by proceedings in garnishment instituted by B's creditors.5 The original debtor can not, therefore, be compelled to pay such debt.6

8 "The performance of a condition upon which, alone, the obligation of a promise to pay a certain sum on or by a certain day may be hinged, is not the legal equivalent of the 'payment' prescribed in the cited statute." Ram-sey v. Sibert, 102 Ala. 176, 68 So. 340.

9 "Payment of the note means a discharge of the liability. A sale of a note implies a contract, and a sale can not occur without a contract between the parties - the owner of the note and the one desiring to purchase it." Miller v. Del Rio Min. & Mill. Co., 25 Ida. 83, 136 Pac. 448.

10 See ch. LXXX.

11 Hayes v. Allen, 160 Mass. 286, 30

Am. St. Rep. 474, 36 N. E. 852; Coy v. DeWitt, 10 Mo. 322.

12 See Sec. 2811 et seq.

13 Driesbach v. National Bank, 104 U. S. 52, 26 L. ed. 658; Brown v. Marion National Bank, 160 U. S. 416, 42 L. ed. 801; First National Bank v. La-sater, 106 U. S. 115, 40 L. ed. 408; Rushing v. Bivens, 132 N. Car. 273, 43 S. E. 708; Anderson v. Tatro, 44 Okla. 210, 144 Pac. 360.

14 Patrick v. Petty, 83 Ala. 420, 3 So. 770.

1 Bell v. Southern Home Bldg. & Loan Assn., 140 Ala. 371, 103 Am. St. Rep. 41, 37 So. 237; Campbell v. Cove Ranch Land & Livestock Co., 28 Ida. 445, 155 Pac. 662; Swift v. New York, 83 N. Y. 528; People v. Syracuse, 144 N. Y. 63, 38 N. E. 1006.

2 Vandegrift v. Engineering Co., 161 N. Y. 435, 48 L. R. A. 685, 65 N. E. 041.