Tender may be important in various aspects: it. And as in ordinary cases, the debt is not discharged by such tender and refusal the plea must not only go on to allege that the defendant is still ready (uncore prist) but must be accompanied by a profert in curiam of the money tendered. If the defendant can maintain this plea, although he will not thereby bar the debt) for that would be inconsistent with the uncore prist and profert in curiam, (yet he will answer the action, in the sense that he will recover judgment for his costs of defence against the plaintiff, - in which respect the plea of tender is essentially different from that of payment of money into court." 65
1. As a total discharge from liability to perform an obligation. In this aspect the subject has previously been discussed in connection with excuses for non-performance of obligations.63
2. As giving a right to performance by the other party or a right to an action of damages against him. In this aspect the subject has previously been discussed in connection with conditions and excuses for their non-performance.64
3. As excusing damages for delay in performance. It is in this aspect that the subject remains to be treated.
The fundamental principles have been thus stated: "In actions of debt and assumpsit, the principle of the plea of tender, in our apprehension, is, that the defendant has been always ready (toujours prist) 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 v. Bingham, 11 Mass. 300; Thatcher v. Maasey, 20 S. Gar. 542.
62 In American Surety Co. v. Vernier, 183 Mass. 329, 332, 67 N. E. 331, the court said: "The only tender that can be made effectual under a contract is a tender of the whole amount due. The present contract was a single, indivisible undertaking, completely to indemnify the present plaintiff. Until there was a tender of entire relief from liability, the defendants continued liable. Green v. Shurtliff, 19 Vt. 592; Dunning v. Humphrey, 24 Wend. 31. No provision was made, nor attempted to be made, to relieve the plaintiff from its liability for the interest that was certain to accrue while the suit to determine the disputed question was pending, and it does not appear that there was at any time any legal protection of the plaintiff from its liability for the costs of suit, or for the expenses of the litigation. . . . The principle is analogous to that which, in the absence of statutory authority, prevents an effectual tender in a case where the damages are unliquidated. Dearie v. Barrett, 2 A. & E. 82; Davys v. Richardson, 21 Q. B. D. 202; McDowell v. Keller, 4 Coldw. 258; Lawrence v. Gifford, 17 Pick. 366." See also Southern Ry. Co. v. Harris (Ala.), 80 So. 101.
63 Supra, Sec. 677.
64 Supra, Sec.Sec. 743, 744, 832, 833.