Sec 970

Tender is of two kinds. The first is where a debtor offers to his creditor money sufficient to pay a definite debt. This, as we will see, suspends interest on the debt and precludes damages for non-payment. The second is where there is an obligation by a party to a sale to deliver to the other party either goods or money at a specific time and place.

Distinction between tender of a debt and tender of something in compliance with contract.

Here a tender duly made extinguishes the claim. In the first case, therefore, the tender is the admission of an indebtedness, in the second it is the extinction of an indebtedness. The two kinds of tender, therefore, are widely different, and some confusion has arisen from their being discussed under one general head. In the present chapter they will be treated separately, so far as concerns their distinctive characteristics.1 sec 971. A tender in the first sense is an offer of money in payment in full of a definite debt which has matured, and, to be effective, must cover not only the debt, but all interest which has accrued on it.2 If made in lieu of payment, it must embrace a sum of money equal to the sum due.3 If made after a suit has commenced, it must also include all costs that have been incurred in its maintenance.4 A tender rests on the supposition "that the defendant has been always ready to perform entirely the contract on which the action is founded; and that he did perform it, as far as he was able, by tendering the requisite money; the plaintiff himself precluding a complete performance by refusing to receive it."5 It claims, therefore, that, as the plaintiff could have got what he wanted without suit, suit was unnecessary and vexatious.6

Sec 972

When a debt is due, the debtor's liability, so far as concerns future accruing interest, is put an end to by a tender of the debt.7 But if the tender be refused, and the debtor in any way consents to the Tender is an offer of payment in full of a debt.

Tender stops interest and continuance of the indebtedness, interest continues to run.1 A tender, however, to stop interest, must imply continuous readiness to pay.2 - In New York, a tender of payment after maturity of a debt releases the lien of a mortgage given to secure it,3 and so in Michigan.4 But the general rule is that, at common law, a tender after breach of the condition does not operate as a discharge of the mortgage.5 In New Hampshire, payment after the day is made good by statute.6


1 As to time of performance of a contract, see supra, sec 881 et seq. As to payment, see supra, sec 923 et seq.

2 Bac. Abr. Tender; Com. Dig. Tender. That tender must be made personally, see supra, sec 873.

3 Infra, sec 978; Benj. on Sales, sec 713; Startup V. Macdonald, 6 M. & G. 593; Sargent V. Graham, 5 N. H. 440; Case V. Green, 5 Watts, 262; see Springport V. Bank, 84 N. Y. 403.

4 Emerson V. White, 10 Gray, 351; see Stevens V. Briggs, 14 Vt. 44.

5 Per cur. in Dixon V. Clark, 5 C. B. 377; James V. Vane, 2 E. & E. 883; adopted Leake, 2d ed. 858.

6 Carley V. Vance, 17 Mass. 369; Coit V. Houston, 3 Johns. Ca. 243; Law V. Jackson, 9 Cow. 641; Cornell V. Green, 10 S. & R. 14; Fuller V. Pelton, 16 Ohio, 457; Verges V. Giboney, 38 Me. 458.

7 Dixon V. Clark, 5 C. B. 365; Dent V. Dunn, 3 Camp. 296; Carley V. Vance, 17 Mass. 389; Law V. Jackson, 9 Cow. 641; Cornell V. Green, 10 S. & R. 14.

1 See Kirton V. Braithwaite, 1 M. & W. 310; Norton V. Ellam, 2 M. & W. 461; Maltby V. Murrells, 5 H. & N. 813; Hendee V. Howe, 33 N. J. Eq. 92; and cases cited infra, sec 980.

"It is now settled, by the decision of the queen's bench in 1860 in James V. Vane, 2 E. & E. 883, overruling Cooch V. Maltby, 23 L. J. Q. B. 305, and affirming the earlier case of Dixon V. Walker, 7 M. & W. 214, that a tender is a bar to the action quoad its amount, and not merely a bar to damages." Benj. on Sales, 3d Am. ed. sec 728.

2 Gray V. Angier, 62 Ga. 596. Where a promissory note is payable on demand, it is due immediately on its delivery (infra, sec 980), though it does not carry interest until demand unless it be so provided by its own terms. Leake, 2d ed. 861.

3 Kortrigbt V. Cady, 21 N. Y. 343; Edwards V. Ins. Co., 21 Wend. 467.

4 Potts V. Plaisted, 30 Mich. 149.

5 Jones on Mort. 2d ed. sec 9, 892; Rowell V. Mitchell, 68 Me. 21; Erskine V. Townsend, 2 Mass. 493; Currier V. Gale, 9 Allen, 522; Holman V. Bailey, 3 Met. 55; Shields V. Lozear, 34 N. J. L. 496; Story V. Krewson, 55 Ind. 397; Perre V. Castro, 14 Cal. 519; Himmel-mann V. Fitzpatrick, 50 Cal. 650.

6 See Robinson V. Leavitt, 7 N. H. 73.

In Minnesota it is held that a tender of a mortgage debt to the sheriff after the foreclosure sale, and a refusal by him to receive the amount necessary to redeem, does not operate as a discharge of the lien of the holder of the certificate of sale. Schroeder V. Lahman, S. C. Minn. 1881. In this case Mitchell, J., said: "The only question in the case is, whether a mere tender to the sheriff, and a refusal by him to receive the amount necessary to redeem, operates as a discharge of the lien of the holder of the certificate of sale. We are of opinion that this question must be answered in the negative. In such case the sheriff is not his agent, but merely the officer of the law with whom the redemptioner, if he sees fit, may deposit the money instead of paying it to the party to whom it belongs. No act of his can prejudice the rights of the holder of the certificate of sale. Horton V. Maffitt, 14 Minn. 289; Davis V. Seymour, 16 ib. 210; Tinkcom V. Lewis, 21 ib. 132; Gilchrist V. Comfort, 34 N. Y. 235. The only office or effect of such tender and refusal is that it will preserve and protect the right of the redemptioner to have the redemption perfected, if such right be seasonably asserted. The sheriff being the officer of the law, and not the agent of either party, his refusal to receive the money and to execute a certificate of redemption does not destroy the re-demptioner's right, if seasonably asserted, to have the redemption perfected and properly evidenced; neither does it impair the right of the holder the other stating a contract of service; in which case the paying money into court admits the contract.1