No. 2435. Book 4, tit. 1, chap. 3, sec. 2. No. 2439. SECTION 2.-ACTS TO BE DONE BY DEFENDANT BEFORE ACTION BROUGHT. 2435. In anticipation of difficulties which may arise, it frequently becomes highly proper, if not indispensable, that notice should be given, and the want of it may render the party liable to an action, which could not have been sustained against him, if such notice had been given. The following are a few of the numerous cases of this class: 2436.-1. When a wife has, by her unlawful conduct, induced her husband to withdraw from her the general authority with which the laws presumed he had invested her to purchase goods as his agent, he is bound, in good faith, to inform those who would be likely to trust her on his account, that she has no longer any authority to buy on his credit. He should therefore give a public notice prohibiting third persons from trusting her on his credit; and it is advisable to give a private notice to such persons as have before sold to her on credit. Though, when the wife has committed adultery, such notice is not indispensable, yet it is always prudent to give it. This notice, whether general or special, will be of no avail, if the husband has causelessly turned his wife away, and refused her necessaries, if the wife buy nothing but necessaries. 2437.-2. But a son or a daughter have not the same authority to buy on the father's credit, that the wife has to buy on that of her husband; if, therefore, the parent desires to withdraw the authority of his child, he should give private notice to such persons as may have before trusted him; a public notice is not requisite. 2438.-3. When an agent or servant has been authorized, expressly or by implication, to buy goods on credit of the principal, and the authority is withdrawn, notice of that fact should be given. 2439.-4. Upon the same principle, when two No. 2440. Book 4, tit. 1, chap. 3, sec. 2. No. 2440. persons have been in partnership, the presumption of its continuance is sufficient to authorize a person to trust one of the partners, in the name of the firm; and when it has been dissolved, notice should be given specially to all persons who have before dealt with the partnership, and generally by public advertisement in the newspapers to all other persons. 2440.-5. In cases of an expected suit on a contract, when the proposed defendant admits something to be due, care should be taken to make a lawful tender of it. A tender is an offer to perform an act which the party offering is bound to perform to the party to whom the offer is made. A tender may be made of money, or of specific articles, and, as the manner of making it is different, the two modes will be separately considered. First. To make a valid tender of money, the following requisites are necessary: 1st. It must be made by a person capable of paying; for if it be made by a stranger, without the consent of the debtor, it will be insufficient. (a) 2dly. It must be made to the creditor having capacity to receive it, or to his authorized agent. 3lly. The whole sum due must be offered; an offer of a greater sum, demanding change, is not a good tender, as if a half eagle be tendered in payment of four dollars, demanding change of one dollar. But an offer of twenty eagles, when only fifteen were due, with a request to return the difference, has been held to be a good tender of fifteen eagles. (b) 4thly. An offer of the money must be made by producing it, and counting it in the presence of the (a) Contrary to this general rule, it has been decided in Pennsylvania, that a tender of money for an infant, by his uncle, is good, though not appointed guardian at the time of the tender. Brown v. Dysinger, 1 Rawle, 408. (b) Bettersheer. Davis, 3 Campb. 70; Spigbey v. Hide, 1 Campb. 181. See Hubbard v. Chenango Bank, 8 Cowen, 88. No. 2440. Book 4, tit. 1, chap. 3, sec. 2. No 2440. creditor, (a) unless the creditor states he will not receive it, because more is due to him, in which case its production may be dispensed with ; (b) but a mere dispute respecting the amount of the debt, without expressly dispensing with its production, will not excuse the omission.(c) 1 5thly. The money tendered must be the lawful co 1. of the United States, or such foreign coin as is mܠ current by law. A note for so many dollars, "in g and silver," must therefore be paid in money, and cannot be satisfied by a tender of bullion, gold and silver bars, old spoons and rings, or indeed any thing but lawful coin. (d) But a tender in bank notes, if not objected to on that account, will be good. (e) And a tender was held good when made by a check contained in a letter, requesting a receipt in return, which the plaintiff sent back, demanding a larger sum, without objecting to the nature of the tender.(f) 6thly. The tender should be made at the time agreed upon for the performance of the contract; if made afterward, it only goes in mitigation of damages, provided it be made before suit brought.(g) It must be made in day time, before the light is entirely gone.(h) 7thly. The tender must be made to a person capable of receiving the money; when there are several joint obligees, the tender to one is a tender to all.(i) 8thly. The tender must be made at the place agreed upon for the payment, or, if there be no place ap (a) Fuller v. Little, 7 N. Hamp. 535. (b) Thomas v. Evans, 10 East, 101. But see Behaly v. Hatch, Walker, 369. (c) Dickinson v. Shee, 4 Esp. 68. (d) Hart v. Flynn, 8 Dana, 190. (e) Williams v. Rorr, 7 Mis. 556; Noe v. Hodges, 3 Humph. 162; Seawell v. Henry, 6 Ala. 226; Ball v. Stanley, 5 Yerg. 199. (f) 8 D. P. C. 442. (g) 7 Taunt. 787. (h) 7 Greenl. 31: Bac. Ab. Tender, D. (i) Warder v. Arell, 2 Wash. 297. No. 2440. Book 4, tit. 1, chap. 3, sec. 2. No. 2440. pointed for that purpose, a tender to the person is good. (a) 9thly. The tender must be an unconditional and unqualified offer to pay the money, because if the creditor were to accept it, the claim for the residue might be thereby prejudiced; therefore a tender of a certain sum accompanied by a request of a receipt in full, or upon condition that it shall be received for the whole balance due, or that a particular document shall be given up or cancelled, is insufficient. (b) The effect of a tender, when properly made, is to defeat the plaintiff in a suit which he may afterward bring; when the plaintiff has a direct cause of action, the only effect of the tender and refusal is to expose the plaintiff to the loss of interest and costs, if the defendant pleads the tender and brings the money into court.(c) The benefit of the tender will be lost, however, if at any time afterward a demand is made of the debtor to pay the debt, and he fails to pay, because the money tendered belongs, to a certain extent, though not in every particular, to the creditor, (d) and if the debtor has made use of it, he cannot plead that he tendered the money and has always been ready since, en tout temps pris, to pay it. But in order to effect this destructive quality as to the tender, the demand must be made at some reasonable time, for if it be made at an unreasonable hour, it will not avoid the effect of a tender.(e) (a) Slingerland v. Morse, 8 John. 476; Litt. Sel. Cas. 132. See Hunter v. Le Conte, 6 Cowen, 728. (b) Haxham v. Smith, 2 Campb. 21; Holton v. Brown, 18 Verm. (3 Washb.) 224; Glasscott v. Day, 5 Esp. R. 48. (c) Cornell v. Green, 10 S. & R. 14; Law v. Jackson, 9 Cowen, 641; S. C. 5 Cowen, 248; Raymond v. Bearnard, 12 John. 274. (d) The money so far belongs to the creditor that the debtor has no right to use it, and such use of it as deprives him of the opportunity of paying the creditor when he demands it, defeats the tender; yet it does not belong to the creditor so as to entitle him to the identical money, nor would it be his loss if it should be lost. No. 2440. Book 4, tit. 1, chap. 3, sec. 2. No. 2440. Secondly. With regard to the tender of specific articles, it is a rule that they are to be tendered at some particular place, and not, as in the case of money, to the person of the creditor wherever found. When no place is expressly designated in the contract, the place of delivery is to be ascertained by the intent of the parties, to be collected from the nature of the case and its circumstances. If, for example, the contract is for the delivery of goods from the seller to the buyer on demand, the former being a manufacturer of such goods, or a dealer in them, no place being particularly named, the manufactory or store of the seller will be considered as the place intended, and a tender there will be sufficient. The intent of the parties here, is the guide. For the same reason, when the goods are at another place at the time of sale, the intention must be presumed to be, that the goods should be delivered there. When the articles are cumbrous, and the place of delivery is not designated, nor to be inferred from circumstances, the presumed intention is that they shall be delivered at such reasonable place as the creditor shall appoint; and if, upon being requested, if within the state, to appoint a place, he refuses, or neglects, or appoints an unreasonable place, the right of appointment passes to the debtor, who is bound to give notice to the creditor of such appointment, if practicable, and a proper tender of the goods will pass the title to the creditor, and the creditor will be absolved from the obligation. (a) With regard to the manner of tendering the goods, it may be observed that when specific articles are tendered, if they are part of a larger quantity, they should be so designated and set apart, that the creditor (a) Co. Litt. 210, b; Aldrich v. Albee, 1 Greenl. 120. See Bixby v. Whitney, 5 Greenl. 192; Slingerland v. Morse, 8 John. 474. Vide ante, n. 941 to 952. |