*645 debtor demands a receipt for the sum which he pays, and if this be refused, retains the money, he will thereby (though always ready to pay it on those terms) lose the benefit of his tender. But the authorities seem to go in this direction. It has been recently held in New York, that a tender is valid although accompanied with a condition, if this be one which the debtor had a right to make and the creditor had no right to resist. (mm) If, however, a tender be refused on some objection quite distinct from the manner in which it was made, as for the insufficiency of the sum or any similar ground, objections arising from the form of the tender are considered as waived, and cannot afterwards be insisted upon. (n) The tender may certainly be accompanied with words explanatory of the transaction, if they impose no condition. (nn)

The tender should be in money made lawful by the State in which it is offered. (0) But if it be offered in bank-bills which are current and good, and there is no objection to them at the time on the

accepted as the whole balance due, which is holden bad by all the books. The tender was also bad, because the defendant would not allow that he was even liable to the full amount of what he tendered. His act was within the rule which says he shall not make a protest against his liability. He must also avoid all counterclaim, as of a set-off against part of the debt due. That this defendant intended to impose the terms, or raise the inference that the acceptance of the money should be in full, and thus conclude the plaintiff against litigating all further or other claim, the referees were certainly entitled to say. That the defendant intended to question his liability to part of the amount tendered is equally obvious, aud his object was at the same time to adjust his counter-claim. It is not of the nature of a tender to make conditions, terms, or qualifications, but simply to pay the sum tendered, as for an admitted debt. Interlarding any other object will always defeat the effect of the act as a tender. Even demanding a receipt, or an intimation that it is expected, as by asking, Have you got a receipt?' will vitiate. The demand of a receipt in full would of course be inadmissible." The reason of

Sutton

this rule is obvious where the debtor does
not in fact tender all that is due; for if a
debtor tenders a certain sum as all that is
due, and the creditor receives it, under
these circumstances it might compromise
his rights in seeking to recover more; but
if the same sum was tendered uncondition-
ally, no such effect could follow.
v. Hawkins, 8 C. & P. 259. The reason
why a tender has so often been held in-
valid, when a receipt in full was de
manded, seems not to have been merely
because a receipt was asked for, but
rather because a part was offered in full
payment. See Cheminant e. Thornton, 2
C. & P. 50; Peacock v. Dickerson, 2 C. &
P. 51, n.; Sandford r. Bulkley, 30 Conn.
344. It is believed that no case has gone
so far as to hold that a tender would be
bad because a receipt for the sum tendered
was requested.

481.

(mm) Wheelock v. Tanner, 39 N. Y.

(n) Cole ". Blake, Peake, 179; Richardson v. Jackson, 8 M. & W. 298; Bull e. Parker, 2 Dowl. (N. s.) 345.

(nn) Foster v. Drew, 39 Vt. 51. (0) Wade's case, 5 Rep. 114; Hallowell. Howard, 13 Mass. 235; Moody v. Mahurin, 4 N. H. 296.

1 Thus a tender to pay a note is not invalidated because subject to a condition that the note be given up. Strafford v. Welch, 59 N. H. 46. So in the case of a bond. Bailey v. Buchanan County, 115 N. Y. 297. A tender of the amount due on a mortgage is good though conditional on the execution of satisfaction of the mortgage. Halpin v. Phoenix Ins. Co. 118 N. Y. 165. See also Johnson v. Cranage, 45 Mich. 14.

ground that they are not money, it will be considered so far an objection of form, that it cannot afterwards be advanced. (p)1

It has been said in England, that by a tender is meant, not merely that the debtor was once ready and willing to pay, but that he has always been so and still is; and that the effect of it will therefore be destroyed if the creditor can show a demand by him of the proper fulfilment of the contract, at the proper time, and a refusal by the debtor. (g) It is possible that a demand and refusal may in some cases have the effect of annulling a tender, even if they take place before the tender was made; *646 although, as has been said, generally, if not universally, in this country, a tender is valid and effectual if made at any time after a debt is due; and a demand made after the tender, if for more than the sum tendered, will not avoid the tender. (r)

Any tender made may be refused, and, if left with the party against his will, it is ineffectual; but if it is so left, and when afterwards demanded by the tenderer is refused, it is then valid. (rr)

2. OF THE TENDER OF CHATTELS.

The thing to be tendered may not be money, but some specific article; and the law in relation to the delivery of these under a contract has been much discussed, and is not perhaps yet quite settled. We have alluded to some of the questions which this topic presents, when speaking of sales of chattels. Others remain to be considered.

It may be considered as settled, that acts which would constitute a sufficient tender of money, will not always have this effect in relation to chattels. Thus, if one who is bound to pay money to another at a certain time and place, is there with the money in

(p) This may be fairly inferred from the case of Warren v. Mains, 7 Johns. 476; and see Ball v. Stanley, 5 Yerg. 199; Wheeler v. Knaggs, 8 Ohio, 172; Brown v. Dysinger, 1 Rawle, 408; Snow v. Perry, 9 Pick. 542; Towson v. Havre-de-Grace Bank, 6 Harris & J. 53.

(q) Dixon v. Clark, 5 C. B. 365; and see Cotton v. Godwin, 7 M. & W. 147.

(r) Thetford v. Hubbard, 22 Vt. 440. Certainly not, if the demand is for more than the real debt, although the excess was for another debt truly due Dixon v. Clark, 5 C. B. 378. And see Brandon v. Newington, 3 Q. B. 915; Hesketh v. Fawcett, 11 M. & W. 356; apparently overruling Tyler v. Bland, 9 M. & W. 338. (r) Rogers v. Rutter, 10 Gray, 410.

This rule has been applied where tender of a check has been refused for other reasons than that the check was not money, Walsh v. St. Louis, &c. Assoc. 101 Mo. 534; Duffy v. O'Donovan, 46 N. Y. 223; so where tender of an order on a third person has been made and refused. Harriman v. Meyer, 45 Ark. 37.

Even an objection that a tender was insufficient in amount has been held barred by the fact that refusal to accept the tender was based on other grounds. Oakland Bank v. Applegarth, 67 Cal. 86.

his pocket for the purpose of paying it, and is prevented from paying it only by the absence of the payee, this has the full effect of a tender. (s) But if he is bound to deliver chattels at a particular time and place, it may not be enough if he has them there. They may be mingled with others of the like kind which he is not to deliver. Or they may need some act of separation, or identification, or completion, before they could become the property As in sales, the property in chattels

*

* 648

does not pass while any such act remains to be done; so, if there be an obligation to deliver these articles, it may be said, as a general rule, that the obligation is not discharged so long as anything is left undone which would prevent the property from passing under a sale. That is, it is no tender, unless so much is done that the other party has nothing to do but signify his acceptance, in order to make the property in the chattels vest at once in him. An exception would doubtless be made to this rule, in reference to chattels which could be ascertained and specified by weight, measure, or number. If one, bound to deliver twenty bushels of wheat at a certain time and place, came there with fifty bushels in his wagon, all of the same quality, and in one mass, with the purpose of measuring out twenty bushels; and was prevented from doing so only by the absence of the promisee, this must be a sufficient tender. It is not necessary that the chattels should be so discriminated that they might be described and identified with the accuracy necessary for a declaration in trover; because, except in some instances to be spoken of presently, the promisee does not acquire property in the chattels by a tender of them which he does not accept. He may still sue on the contract; and to this action the promisor may plead a tender, and "that he always has been and now is ready" to deliver the same; and then the promisee may take the goods and they become his property, and the contract is discharged. But the promisor need not plead the tender unless he choose to do so. He may waive it, and then the promisee recovers only damages for the breach of the contract, and acquires no property in the chattels.

When a tender is pleaded with a profert, the defendant should have the article with him in court. But this would be sometimes inconvenient, in the case of very bulky articles, and sometimes impossible. A reasonable construction is therefore given to this requirement; and it is sufficient if the defendant be in actual possession of the article, and ready to make immediate delivery to the plaintiff, in a manner reasonably convenient to him. (u) In such case, however, it was a rule of the old law, and the reason would seem to exist now, that it should be averred in the plea that the thing cannot, by reason of its weight, conveniently be brought into court. (v)

place agreed upon to deliver the whiskey, according to the terms of the contract; but that the plaintiff was not then and there ready to accept the same; but the plea did not state that the defendant was at the place, in person or by agent, ready

and prepared to deliver the whiskey, and for this omission the plea was held insufficient.

(u) Bro. Abr. tit. Tout temps prist, pl. 3; 2 Rol. Abr. 524. (e) Id.

The tender must be equally unconditional as if of money. It may be made to an agent, or by an agent; but if the agent of the deliverer has orders to deliver the chattels to the receiver only if he will cancel and deliver up the contract, this is not a tender, although such agent had the chattels at the proper time and place. (w)

649

*

It is a good defence pro tanto to such a contract, that the plaintiff accepted a part of the articles before the day specified in the contract; (x) or that there was an agreement between the parties, which may be by parol, that the chattels should be delivered at another time and place, and that the plaintiff was there, wholly ready to deliver them; (y) or that the defendant knew that the articles were delivered at another time and place, and did not dissent or object. (z)

Generally, if no time or place be specified, the articles are to be delivered where they are at the time of the contract, (a) unless collateral circumstances designate a different place. (b) If the time be fixed, (c) but not the place, then it will be presumed that

40.

(w) Robinson v. Batchelder, 4 N. H. mitted, that the store of the merchant, the

(x) Id. (y) Id.

(2) Flagg v. Dryden, 7 Pick. 53. (a) Brouson v. Gleason, 7 Barb. 472; Barr v. Myers, 3 Watts & S. 295, a sale of 2,000 mulberry trees. The reason is, that the party to receive is to be the actor, by going to demand the articles; and until then, the other party is not in default by omitting to tender them. See also Thaxton v. Edwards, 1 Stew. 524; McMurry e. The State, 6 Ala. 326; Minor v. Michie, Walker, 24; Chambers v. Winn, Hardin, 80. n.; Dandridge v. Harris, 1 Wash. (Va.) 326. A note payable in specific articles, without mentioning time or place, is payable only on demand, and should be demanded at the place where the property is.

Lobdell v. Hopkins, 5 Cowen, 518; Vance v. Bloomer, 20 Wend. 196. In Rice v. Churchill, 2 Denio, 145, a note was given by the owner of a saw-mill payable in lumber, when called for. It was held to be payable at the maker's mill, and that a special demand there was necessary to fix the maker, unless he had waived the necessity thereof. See Edwards v. Hartt, 66 Ill. 71.

(b) Thus, in Bronson v. Gleason, 7 Barb. 472, while the general rule was ad

shop of the mechanic, or manufacturer, and the farm or granary of the farmer, is the place of delivery when the contract is silent on the subject; this rule was held inapplicable when the collateral circumstances indicated a different place. It was there held, that where goods are a subject of general commerce, and are purchased in large quantities for reshipment, and the purchaser resides at the place of reshipment, and has there a storehouse and dock for that purpose, a contract to deliver such purchaser "400 barrels of salt in good order, before the first of November," meant a delivery at the purchaser's place of residence.

(c) If the time fall on Sunday, tender on Monday is good. Barrett v. Allen, 10 Ohio, 426; Stebbins v. Leowolf, 3 Cush. 137; Sands v. Lyon, 18 Conn. 18, Avery v. Stewart, 2 id. 69; Salter v. Burt, 20 Wend. 205. Questions often arise as to the time of day at which a tender may, or must be made. It seems that the debtor must have the property at the place agreed upon, at the last convenient hour of that day. See Tiernan v. Napier, 5 Yerg. 410; Aldrich v. Albee, 1 Greenl. 120; Savary v. Goe, 3 Wash. C. C. 140. Unless by the acts of the parties this is waived. In Sweet v. Harding, 19 Vt. 587, a note was

1 A tender must be made before sunset, so that the act may be completed by day. light; but if made after sunset, it is good if the party to receive is present. Hall v. Whittier, 10 R. I. 530.-K.