239. Tender is an offer or attempt to perform, and may be either -
(b) An offer to pay something promised, in which case the offer, and its refusal by the promisee, do not discharge the debt, but prevent the promisee from recovering more than the amount tendered, and in an action by the promisee entitle the promisor to recover the costs of his defense.20
"Tender" is an attempted performance. The word is applied to performance of two kinds: (1) To performance of a promise to do something; and (2) to performance of a promise to pay something, - and the effect of the attempt at performance in the two cases is different. In both cases the performance is frustrated by the act of the party for whom it is to take place.
Where, in a contract for the sale of goods, the vendor satisfies all the requirements of the contract as to delivery, and the purchaser nevertheless refuses to accept the goods, the vendor is discharged by such a tender of performance, and may either maintain or defend successfully an action for the breach of the contract.21 Where, however, the performance due consists in the payment of a sum of money, a tender by the debtor, although it extinguish an existing debt, rather than a debt not yet due (Baker v. Stack-poole, 9 Cow. [N. Y.] 420, 18 Am. Dec. 508; Kline v. Ragland, 47 Ark. 1ll, 14 S. W. 474; Heard v. Pulaski, SO Ala. 502, 2 South. 343; Bobe's Heirs v. Stickney, 36 Ala. 482), although the debt not due was the first contracted (Briggs v. Steel, 91 Ark. 458, 121 S. W. 754). See "Payment" Dec. Dig. (Key-No.) § 43; Cent. Dig. § 122.
19Christie v. Scott, 77 Kan. 257, 94 Pac. 214. See "Payment," Dec. Dig. (Key-No.) § 42; Cent. Dig. §121.
20Anson, Cont. (4th Ed.) 274, 275.
21 Startup v. Macdonald, 6 Man. & G. 593; Benj. Sales, 563; Lamb v. Lathrop, 13 Wend. (N. T.) 95, 27 Am Dec. 174; Phelps v. Hubbard, 51 Vt 489; Oelrichs v. Artz, 21 Md. 524; Berry v. Nall, 54 Ala. 446; Mitchell v. Merrill, 2 Blackf. (Ind.) 87, 18 Am. Dec. 123. See "Sales," Dec. Dig. (Key-No.) § 153; Cent. Dig. §§ S58-SG6.
may constitute a good defense to an action by the creditor, does not discharge the debt.22 If the creditor will not take the money when it is due and is tendered him, he puts himself at a disadvantage if he should attempt to recover it by action. While the debt is not discharged, the running of interest is stopped, and the creditor loses the right to any lien or other benefit incidental or accessory to the debt.23 The debtor, to defend successfully by pleading the tender, must continue always ready and willing to pay the debt, or, as it is said, the tender must be kept good,24 and when he is sued, and pleads the tender, he must, in most jurisdictions, pay the money into court.28 If the plea is sustained, the creditor gets nothing but what was originally tendered him, and the debtor gets judgment for his costs, so that he is placed, as nearly as can be, in as good a position as he held at the time of the tender.26 A tender and payment of money into court, even if it is not accepted, operates as an absolute transfer of the money to the creditor.27 Even if the judgment is for a less sum, or is for the debtor, the title to the money has passed to the creditor, and the court may not make an order in the same action for the retransfer of the title. Relief from mistake or fraud may be had, if at all, only in an independent action brought for the purpose.28
Tender, to be a valid performance to this extent, must observe exactly any special terms which the contract may contain as to time, place, and mode of payment.29 Further than this, the tender must be an offer of money produced, or at least made accessible to the creditor.30 Tender of a check,31 even though it is certified,32 is not sufficient; but if the tender is refused by the creditor on other grounds, he will be considered as having waived objection on the ground that it was by check.33
22 Dixon v. Clarke, 5 C. B. 376. See "Tender," Dec. Dig. (Key-No.) § 19; Cent. Dig. §§ 59-67.
23 Kortright v. Cady, 21 N. Y. 343, 78 Am. Dec. 145; Murray v. O'Brien, 56 Wash. 361, 105 Pac. 840, 28 L. R. A. (N. S.) 998. See "Tender," Dec. Dig. (Key-No.) § 19; Cent. Dig. §§ 59-67.
24Healy v. Protection Mut. Fire Ins. Co., 213 111. 99, 72 N. E. 678. See "Tender," Dec. Dig. (Key-No.) § 18; Cent. Dig. §§ 55-58.
25Dixon v. Clarke, 5 C. B. 376; Aulger v. Clay, 109 111. 487; Illinois v. Railroad Co. (C. C.) 33 Fed. 730; Rice v. Kahn, 70 Wis. 323, 35 N. W. 465; Becker v. Boon, 61 N. Y. 317; Taylor v. Railroad Co., 119 N. Y. 561, 23 N. B. 1106; Columbian Bldg. Ass'n of East Baltimore No. 4 v. Crump, 42 Md. 192; Bissell v. Heyward, 96 U. S. 580, 24 L. Ed. 678; Roberts v. White, 146 Mass. 256, 15 N. E. 568; Commercial Fire Ins. Co. v. Allen, 80 Ala. 571, 1 South. 202. While at law the rule that a tender must be kept good by payment into court is well-nigh universal, in equity this will not be required where it would work injustice to the debtor or give the creditor an unconscionable advantage. Kortright v. Cady, 21 N. Y. 343, 78 Am. Dec. 145; Murray v. O'Brien, 56 Wash. 361, 105 Pac. 840, 28 L. R. A. (N. S.) 998. See "Tender," Dec. Dig. (Key-No.) § 18; Cent. Dig. §§ 55-58.
26 Cornell v. Green, 10 Serg. & R. (Pa.) 14. See "Tender," Dec. Dig. (Key-No.) § 19; Cent. Dig. §§ 59-67; "Costs," Cent. Dig. § 146.
27 Mann v. Sprout, 185 N. Y. 109, 77 N. E. 1018, 5 L. R. A. (N. S.) 561, 7 Ann. Cas. 95. See "Tender," Dec. Dig. (Key-No.) § 26; Cent. Dig. §§ 88-95.
28 Mann v. Sprout, supra. See "Tender," Dec. Dig. (Key-No.) §§ 26, 27; Cent. Dig. §§ 88-93.
The debtor must also have the money with him; but its actual production may be waived by the creditor, not only expressly, but impliedly, as where, before it is produced, he declares that he will not receive it.34 It need not necessarily be of the exact sum,35 but it must be of such a sum that the creditor can take exactly what is due without being called upon to give change.36 The tender must be made by the person whose duty time and place.40 And if no place is fixed by law or by the terms of the contract, and the creditor is in the state, it is the duty of the debtor to seek the creditor and tender payment where he is.41 The law, however, does not require a useless thing, and a formal tender is therefore unnecessary where the creditor by his declarations or conduct has clearly indicated that it will be refused.42 So, also, where goods are tendered in compliance with a contract of sale, the tender must comply with all the terms of the contract. An offer to deliver a greater or a less quantity than the contract calls for, is not a valid tender.43 It is also necessary that the buyer shall be given an opportunity to examine them if he chooses, so that he may satisfy himself that they comply with the terms of the contract; otherwise, he does not break the contract by refusing to accept them.44