the whole sum to the day of the first payment, and added to the original debt, and, the payment being deducted, on the remainder interest is cast to the next payment, and so on. The objection to this method is, that if the payment to be deducted is not equal to the interest which has been added to the original sum, then a part of this interest enters into the remainder, on which interest is cast, and thus the creditor receives compound interest. A third method is, to compute the interest on the principal sum from the time when interest became payable to the first time when a payment, alone, or in conjunction with preceding payments with interest cast on them, shall equal or exceed the interest due on the principal. Deduct this sum and cast interest on the balance as before. In this way payments are applied first to keep down the interest, and then to diminish the principal of the debt, and the creditor does not receive compound interest. This last method has been adopted in Massachusetts by decision, and generally prevails. (i) One holding a note on which interest is payable annually or semi-annually, may sue for each instalment of interest as it be comes payable, although the note is not yet due. (j) Al636 though it has been held that after the principal becomes due the unpaid instalments of interest become merged in the principal, and must therefore be sued for with the principal, if at all, (k) the better reason is that the promises to pay the principal and interest at different times are several and afford distinct causes of action. (kk)1 And if he allows the time to run by without demanding interest, he cannot afterwards, in an action on the note, recover compound interest. (1) (i) Dean v. Williams, 17 Mass. 417; Fay v. Bradley, 1 Pick. 194; and see Connecticut v. Jackson, 1 Johns. Ch. 17; French v. Kennedy, 7 Barb. 452; Williams v. Houghtaling, 3 Cowen, 87, note; Union Bank . Kindrick, 10 Rob. (La.) 51; Hart v. Dorman, 2 Fla. 445; Jones v. Ward, 10 Yerg. 160: Spires v. Hamot, 8 Watts & S. 17; United States v. McLemore, 4 How. 286; Story v. Livingston, 13 Pet. 359; Wallace . Glaser, 82 Mich. 190, Anderson v. Perkins, 10 Mont. 154. 3 Randolph, Com. Paper, § 1497. (1) Greenleaf v. Kellogg, 2 Mass. 568; Cooley v. Rose, 3 id. 221; Herries v. Jamieson, 5 T. R. 553. See also Townsend v. Riley, 46 N. H. 300. And see ante, p. 620, note (c). * (k) Howe v. Bradley, 19 Me 31. (kk) Sparhawk v. Wills, 6 Gray, 163; Andover Savings Bank v. Adams, 1 Allen, 28. (2) Hastings v. Wiswall, 8 Mass. 455; Ferry v Ferry, 2 Cush. 92; Doe v. Warren, 7 Greenl. 48, and Bennett's note; Connecticut v. Jackson, 1 Johns. Ch. 13; Van Benschooter v. Lawson, 6 Johns. Ch. 313; Attwood v. Taylor, 1 Man. & G. 279; Sparks v. Garrigues, 1 Binn. 152, 165; Leonard v. Adm'r of Villars, 23 Ill. 377. 1 Dulaney v. Payne, 101 Ill. 325, decided that, for this reason, a judgment for unpaid instalments of interest obtained after the maturity of a note was no bar to a separate action for the principal sum thereby secured. 750 SECTION II. OF PERFORMANCE. Having treated of payment as the specific defence to an action. grounded on alleged non-payment, we will now speak of performance, generally, as the most direct contradiction and the most complete defence against actions for the breach of contract. To make this defence effectual, the performance must have been by him who was bound to do it; and whatsoever is necessary to be done for the full discharge of this duty, although only incidental to it, must be done by him. Nor will a mere readiness to do discharge him from his liability, unless he makes that manifest by tender or an equivalent act. (m) 1 By the statutes of the United States, known as the Legal Tender Acts, the promissory notes of the United States are made a legal After much conflict and some fluctuation, these acts were held by a majority of the Supreme Court of the United States (the Chief-Justice and three side justices dissenting) constitutional and valid as applied to contracts made before their passage: the dissenting justices holding them valid only as to (m) Thus, if a tenant by deed covenants to pay rent in the manner reserved in the lease, but no place of payment is mentioned, the tenant must seek out the lessor on the day the rent falls due, and tender him the money. It would not be sufficient that he was on the premises leased, at the day, ready with the money to pay the lessor, and that the latter did not come there to receive it. Haldane v. Johnson, 8 Exch. 689, 20 Eng. L. & Eq. 498. And see Poole v. Tumbridge, 2 M. & W. 223; Shep. Touch. 378; Rowe v. Young, 2 Brod. & B. 165. In Cranley v. Hillary, 2 M. & S. 120, the plaintiff had agreed with the defendant, his debtor, to release him from the whole debt, if the debtor would secure him a part by giving him certain promissory notes. The plaintiff never applied for the notes, nor did the defendant ever tender them, but he was ready to give them if they had been applied for. The plaintiff afterwards sued the defendant on the original cause of action, and the defendant relied upon the agreement to compound. Held, that the defendant should have offered the plaintiff the notes, and that as he had not, the plaintiff was not barred from his action. See Soward v. Palmer, 2 J. B. Moore, 274; Reay v. White, 1 Cromp. & M. 748, that a tender may be dispensed with under certain circumstances. See also Eastman v. Rapids, 21 Iowa, 590 1 But a statement that a tender will not be accepted makes actual tender unneces sary as a condition precedent to a right of action. Veeder v. McMurray, 70 Ia. 118; Duffy v. Patten, 74 Me. 396; McDonald v. Wolff, 40 Mo. App. 302; Post v. Garrow, 18 Neb. 682; Lawrence v. Miller, 86 N. Y. 131. See also Mathis v. Thomas, 101 Ind. 119; Potter v. Taggart, 54 Wis. 395. contracts made after their passage, on which point the court was unanimous. (mm) 1 The same court held that a note payable in specie could not be satisfied against the will of the holder by a tender of "legal tender" notes. (mn) If the tender be of money, it can be a defence only when made before the action is brought, (n) and when the demand is of money, and is definite in amount or capable of being made so. It seems to be settled that a tender may be made to a quantum meruit although once held otherwise; (o) but, generally, where the claim. (mm) Knox v. Lee, and Parker v. Davis, 12 Wallace, 457. See also Maryland v. Railroad Co. 22 Wall. 105. 687. (mn) Trebilcock v. Wilson, 12 Wallace, (n) Bac. Abr. Tender (D); Suffolk Bank v. Worcester Bank, 5 Pick. 106. And in Hume v. Peploe, 8 East, 168, it was held, that a plea of tender after the day of payment of a bill of exchange, and before action brought, is not good, though the defendant aver that he was always ready to pay from the time of the tender, and that the sum tendered was the whole money then due, owing, or payable to the plaintiff in respect of the bill, with interest from the time of the default for the damages sustained by the plaintiff by reason of the non-performance of the promise. And Lord Ellenborough said: "In strictness a plea of tender is applicable only to cases where the party pleading it has never been guilty of any breach of his contract; and we cannot now suffer a new form of pleading to be introduced, different from that which has always prevailed in this case." And per Lawrence, J. “This is a plea in bar of the plaintiff's demand, which is for damages; and therefore it ought to show upon the record that he never had any such cause of action, but here the plea admits it." So in Poole . Tumbridge, 2 M. & W. 223, where the defendant, the acceptor of a bill of exchange, pleaded that, after the bill became due, and before the commencement of the suit, he tendered to the plaintiff the amount of the bill, with interest from the day when it became due, and that he had always, from the time when the bill became due, been ready to pay the plaintiff the amount, with interest aforesaid; the court held the plea bad on Special demurrer. And Parke, B., said: “I have no doubt this plea is bad. The declaration states the contract of the defendant to be, to pay the amount of the bill on the day it became due, and that promise is admitted by the plea. It is clearly settled that an indorsee has a right of action against the acceptor by the act of indorsement, without giving him any notice; when a party accepts a negotiable bill, he binds himself to pay the amount, without notice, to whomsoever may happen to be the holder, and on the precise day when it becomes due; if he places himself in a situation of hardship from the difficulty of finding out the holder, it is his own fault. It is also clearly settled that the meaning of a plea of tender is, that the defendant was always ready to perform his engagement according to the nature of it, and did perform it so far as he was able, the other party refusing to receive the money. Hume v. Peploe is a decisive authority that the plea must state, not only that the defendant was ready to pay on the day of payment, but that he tendered on that day. This plea does not so state, and is therefore bad." And see to the same point, City Bank v. Cutter, 3 Pick. 414; Dewey v. Humphrey, 5 id. 187. The case of Johnson v. Clay, 7 Taunt. 486, if correctly reported, is not law. Per Parke, B., in Poole v. Tumbridge, supra. (0) This was settled in the case of Johnson v. Lancaster, Stra. 576 The report of that case is as follows. "It was settled on demurrer, that a tender is pleadable to a quantum meruit, and said to have been so held before in BR 10 W 3, Giles v. Hart, 2 Salk. 622" In reference to this case of Giles Hart, the learned reporters, in a note to Dearle v Barrett, 2 A. & E. 82, say. In Johnson e. Lan caster this case is cited from Salkeld: and it is said to have been there decided that a All 1 In Juillard v. Greenman, 110 U. S. 421, the Supreme Court held that Congress has power to make notes legal tender in time of peace as well as in time of war the judges held that the case was within the principle of the earlier cases, and all excepting Justice Field expressed the opinion that those cases were correctly decided. is for unliquidated damages, it has been held in England, *638 very strongly, that no tender is admissible. (p) In this country cases of accidental or involuntary trespass form an exception; in part by usage, or by an extension of the principle of the 21 Jas. I. c. 16, or express statutory provision. (q) This seems to be settled in some States, and would, we think, be held generally. A tender may be pleaded to an action on a covenant to pay money. (r) A plea of tender admits the contract, and so much of the declaration as the plea is applied to. It does not bar the debt, as a payment would, but rather establishes the liability of the defendant; for, in general, he is liable to pay the sum which he tenders whenever he is required to do so. (s) But it puts a stop tender is pleadable to a quantum meruit; but that does not appear from the report in Salkeld, and the report in 1 Lord Raymond, 255, states a contrary doctrine to have been laid down by Holt, C. J., and is cited accordingly in 20 Vin. Ab. tit. Tender (S), pl. 6. The point is not expressly mentioned in the reports of the same case in Carth. 413, 12 Mod. 152, Comb. 443, Holt. 556." And see Cox v. Brain, 3 Taunt. 95. (p) Dearle v. Barrett, 2 A. & E. 62. This was an action by a landlord against a tenant for not keeping the premises in repair, &c. The defendant moved for leave to pay £5 into court by way of compensation, under statute 3 & 4 Will. IV. c. 42, § 21, and also that it might be received in court under a plea of tender before action brought. Patteson, J., said "Is there any instance of such a plea to an action for unliquidated damages? To which White, for the defendant, answered: "A plea of tender is allowed to a count on a quantum meruit. It was so settled in Johnson v. Lancaster, 1 Stra. 576. Although the contrary was once held in Giles . Hart, 2 Salk. 622." Lord Denman added: "It does not follow because you may plead a tender to a count on a quantum meruit, that you may also plead it to any count for unliquidated damages." And see Green v. Shurtliff, 19 Vt. 592. (9) New York Rev. St. vol. ii. p. 553, §§ 20, 22; Slack v. Brown, 13 Wend. 390; Mass. Pub. St. c. 179, § 10; Tracy v. Strong, 2 Conn. 659; Brown v. Neal, 36 Me. 407. (r) Johnson v. Clay, 7 Taunt. 486, 1 J. B. Moore, 200. (s) Cox v. Brain, 3 Taunt. 95; Huntington v. American Bank, 6 Pick. 340; Bennett v. Francis, 2 B. & P. 550; Seaton v. Benedict, 5 Bing. 31; Jones v. Hoar, 5 Pick. 291; Bulwer. Horne, 4 B. & Ad. 132; Stafford v. Clark, 2 Bing. 377.-The authorities and practice have not been entirely uniform as to the effect of a payment of money into court, either in actions of assumpsit or tort. In assumpsit the modern doctrine is, that payment into court, when the counts are gen eral, and there is no special count, is an admission that the amount paid in is due in respect of some contract, but not that the defendant is liable on any particular contract upon which the plaintiff may choose to rely. Kingham v. Robbins, 5 M. & W. 94 (1839); Stapleton v. Nowell, 6 M. & W. 9 (1840); Archer v. English, 1 Man. & G. 873 (1840); Charles v. Branker, 12 M. & W. 743 (1844); Edan v. Dudfield, 5 Jur. 317 (1841). On the other hand, if the declaration is on a special contract, and it seems, on the same principle, if there are general counts and also a special count, the payment admits the cause of action as set forth in such special count, but does not admit the amount of damages therein stated. Stoveld v. Brewin, 2 B. & Ald. 116 (1818); Guillod v. Nock, 1 Esp. 347 (1795); Wright v. Goddard, 8 A. & E. 144 (1838); Yate v. Wilan, 2 East, 134 (1801): Bulwer v. Horn, 4 B. & Ad. 132 (1832); Bennette. Francis, 2 B. & P. 550 (1801). In Jones v. Hoar, 5 Pick. 285 (1827), there were three counts, one upon a promissory Hence where a party pleads tender it is an admission that the other party is entitled to judgment for at least the amount tendered. Denver, &c. R. R. Co. v. Harp, 6 Col. 420; Monroe v. Chaldeck, 78 Ill. 429; Wolmerstadt v. Jacobs, 61 Ia. 372: Phoenix Ins. Co. v. Readinger, 28 Neb. 587. See also Wilson v. Doran, 39 Hun, 88, and cases cited. VOL. II. 48 753 * 639 *to accruing damages, or interest for delay in payment, and gives the defendant costs. (t) It need not be made by the defendant personally; if made by a third person, at his request, it is sufficient; (u) and if made by a stranger without his knowledge or request, it seems that a subsequent assent of the debtor would operate as a ratification of the agency and make the tender good. (v). Any person may make a valid tender for an idiot; and the reason of this rule has been held applicable to a tender for an infant by a relative not his guardian. (w) And if an agent, furnished with money to make a tender, at his own risk note, one for goods sold and delivered, and a third for money had and received. The defendant brought in money generally "on account of, and in satisfaction of, the plaintiff's damages in the suit." The court thought this an admission of all the contracts set forth in the declaration, but under the circumstances the defendant had leave to amend and specify that the money was intended to be paid in upon the promissory note. So in Huntington v. American Bank, 6 Pick. 340 (1828), there were two counts, first, on an account annexed to the writ, for the plaintiff's services, claiming a specific sum; and, second, a count claiming a reasonable compensation for his services, and alleging their value at $1,500. The defendant paid $300 into court. The principal question was, whether the defendant by paying the money into court generally, without designating the count on which it was paid in, admitted the contract of hiring, as set out in the second count, thus leaving no question for the jury, except the value of the plaintiff's services. The court held that it did. In Spalding v. Vandercook, 2 Wend. 431 (1829), the declaration contained a count on a promissory note for $131, and also the common money counts. The defendant paid in $89, and sought to reduce the amount of the plaintiff's demand to that sum, by showing that the consideration of the note failed. The court admitted evidence to that point, notwithstanding the plea. See Donnell. Columbian Insurance Company, 2 Sumner, 366 (1836). In Elgar v. Watson, 1 Car. & M. 494 (1842), the action was assumpsit for use and occupation, and for money lent. Coleridge, J., held that a general payment by the defendant acknowledged the plaintiff's right to recover something on every item in his bill of particulars, and it was for the jury to assess the amount. actions of tort the same general principles - In seem to be applied. If the declaration is special, payment into court operates as an admission of the cause of action, as set out in the declaration. Thus, in actions against railways for injuries received by the negligence of the company, or in an action against a town for a defect in the highway, payment into court admits the defendant's liability as set out, and leaves the question of damages for the jury. Bacon v. Charlton, 7 Cush. 581; Perren e. Monmouthshire Railway Co. C. B. (1853), 20 Eng. L. & Eq. 258. And see Lloyd v. Walkey, 9 C. & P. 771. On the other hand, if a declaration in tort is general, as in trover for a number of articles, payment into court would admit a liability on some cause of action, but not any particular article mentioned in the declaration. Schreger v. Carden, 11 C. B. 581, 10 Eng. L. & Eq. 513; Cook v. Hartle, 8 C. & P. 568; Story v. Finnis, 6 Exch. 123, 3 Eng. L. & Eq. 548. (t) Dixon v. Clark, 5 C. B. 365; Waistelle. Atkinson, 3 Bing. 290; Law v. Jackson, 9 Cowen, 641; Coit v. Houston, 3 Johns. Cas. 243; Carley v. Vance, 17 Mass. 389; Raymond v. Bearnard, 12 Johns. 274; Cornell v. Green, 10 S. & R. 14. A tender may be sufficient to stop the running of interest, although not a technical tender so as to give costs. Goff v. Rehoboth, 2 Cush. 475; Suffolk Bank v. Worcester Bank, 5 Pick. 106. (u) Cropp v. Hambleton, Cro. Eliz. 48; 1 Rol. Abr. 421 (K.), pl. 2. A tender may be made by an inhabitant of a school district, on behalf of such district, without any express authority; and this, if ratified by the district, is a good tender. Kincaid v. Brunswick, 2 Fairf. 188. (v) Per Best, C. J., in Harding . Davies, 2 C. & P. 78. And see Kincaid v. Brunswick, 2 Fairf. 188; Read . Goldring, 2 M. & S. 86. (w) Co. Litt. 206 b; Brown v. Dysinger, 1 Rawle, 408. |