This section is from the book "A Commentary On The Law Of Contracts", by Francis Wharton. Also available from Amazon: A Commentary On The Law Of Contracts.
A tender of a sum greater than that due, is not sufficient when the sum is exhibited in large notes or coin, and the creditor is called upon to make change which he refuses to do;2 though it is other-wise when the sum is in itself divisible, so that the excess can be at once returned to the debtor and the remainder retained.3 And when there are several debts due from the same debtor, a gross tender of all these sums is sufficiently formal;4 though, as will be presently seen, when a debt is divisible a tender of a substantive part is good and operates to relieve pro tanto; though a tender of a fraction of an indivisible claim is inoperative.6 But a tender on a debt secured by a common money bond need not be for the penalty. It is sufficient if for the actual indebtedness.6 - A proposition to pay a mortgage debt if certain interest alleged to be usurious be stricken off, is not a tender.7 - A creditor, however, who puts it out of his debtor's power to know the exact sum due, cannot object to a tender, on the ground that it does not reach the exact sum, supposing that it adequately approximates to such sum.8 Thus, where a vendor wrongfully destroyed the contract of sale on which prior payments to him were endorsed, it was held that a tender by the vendee of a less sum than that actually due, together with an offer to pay whatever might prove to be really due, was sufficient.9
Tender must be of exact sum.
1 Supra, sec 974.
2 Watkins V. Robb, 2 Esp. 711; Batterbee V. Davis, 3 Camp. 70; Robinson V. Cook, 6 Taunt. 336; Sargent V. Graham, 5 N. H. 440; Boyden V. Moore, 5 Mass. 365.
3 Leake, 2d ed. 864; Wade's case, 5.
Co. 115 a; Douglas V. Patrick, 3 T. R. 683; Dean V. James, 4 B. & Ad. 546; Beavans V. Rees, 5 M. & W. 306. A tender, though not in technical shape such as to bar costs, may operate so as to suspend interest. Suffolk Bank V. Worcester Bank, 5 Pick. 106.
4 Thetford V. Hubbard, 22 Vt. 440. 5 Infra, sec 979.
6 Tracy V. Strong, 2 Conn. 659. 7 Harmon v Magee, 57 Miss. 410.
8 See supra, sec 603, 612, 716, 747. 9 Downing V. Plate, 90 Ill. 268.
Where an indebtedness consists of several divisible claims, a tender to pay one of them may be pro tanto good.1 And a tender may be made to one of several items;2 though, unless the tender in such case go specifically to a single divisible debt, it is inoperative.3 But to enable a tender to take effect in respect to one out of several claims of the creditor on the debtor, it must be distinctly pointed to such claim. If made generally, without being thus apportioned, and if it be insufficient to meet the aggregate indebtedness, it fails to take effect.4 When a claim is not divisible, a tender of money to pay a part of it is defective unless accepted pro tanto by the creditor;5 though an acceptance pro tanto would not preclude him from claiming the residue.6 - A tender cannot be made by tacking a set-off to a sum in cash;7 though the practice may be different in jurisdictions where set-offs extinguish claims prior to suit.8 - A reception of an amount smaller than an alleged entire indebtedness does not impair the creditor's right to the part of his claim not thus paid off.9
 
Continue to: