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.
(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 v. 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.
(j) Greenleaf v. Kellogg, 2 Mass. 568; Cooley v. Rose, 3 id. 221; Henries v. Jamieson, 5 T. B. 558. 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.
(l) Hastings v. Wiswall, 8 Mass. 455; Ferry v. Ferry, 2 Cnsh. 92; Doe v. Warren, 7 Greenl. 48, and Bennett's note; Connecticut v. Jackson, I Johns. Ch. 13; Van Benschooter v. Lawson, 6 Johns. Ch. 313; Attwood v. Taylor, 1 Man. & G. 279; Sparks v. Garrignes, 1 Binn. 152, 165; Leonard v. Adm'r of Villars, 23 Ill. 377.
1 Dulaney v. Payne, 101 Ill. 325, decided in the converse case that 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.
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)l
• 1. Of Tender.
By the statutes of the United States, known as the Legal Tender Acts, the promissory notes of the United States are made a legal tender. 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 contracts made after their passage, on which point the court was unanimous. (mm) 2 The same court held that a note payable in
(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 most 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, 6 Exch. 689, 20 Eng. L. & Ea. 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.
(mm) Knox v. Lee, and Parker v. Davis, 12 Wallace, 457.
1 But where a vendor has a deed ready for delivery, the vendee's statement of his inability to comply with the terms of the contract will excuse an actual manual tender of the deed. Lawrence v. Miller, 86 N. Y. 131. Where a vendor refuses to receive the property back and to return the purchase-money to the purchaser, a formal tender is unnecessary to rescind the sale. Potter v. Taggart, 54 Wis. 395. Where the plaintiff hired a piano under an agreement that the rent should be applied in part payment of a new piano which he agreed to purchase, but on his offering to pay the balance due after deducting the rent, the defendant denied the agreement, it was held, that a tender of the balance was not necessary before suing. Duffy v. Patten, 74 Me. 396.
2 The United States treasury notes are a lawful tender on contracts for the payment of money generally, whether the payment be optional or required by the contract See Longworth v. Mitchell, 26 Ohio St.334. Lawrence v. Staigg, 10 B. L 581, decided 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 is for unliquidated damages, it has been *held in Eng *688
(mn) Trebilcock v. Wilson, 12 Wallace, 087.
(n) Bac. Abr. Tender (D); Suffolk Bank v. Worcester Bank, 5 Pick. 106. And in Home 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 v. 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 Parte, 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.