So strict is the rule that a tender must be absolute that it has been said that a tender accompanied with a demand for collateral securities pledged for the debt is insufficient;95 and that a tender by a mortgagor must not impose even the condition that the mortgage be discharged of record;96 and even that demand for the surrender of a negotiable instrument invalidates a tender of money for its payment.97 But such few decisions as may warrant these conclusions seem unreasonable, though in all these instances the creditor could maintain an action without alleging or proving a prior conditional offer on his part.98 Enforcement by the creditor of a judgment, however, should not be allowed if he refuses or fails to perform an act obviously necessary to reinstate the debtor in complete security. Accordingly the sound principle is that a tender conditional on the return of collateral security,99 or on the execution of the discharge of a mortgage l is sufficient; and in the case of negotiable paper, not only a party to the instrument who requires it for the enforcement of a right against a prior party in order to recover what he himself has paid, as an acceptor,2 or an indorser,3 may require the surrender of the instrument contemporaneously with payment, but clearly also the maker of a demand note must be justified in imposing the condition of its surrender unless so long a time has elapsed since the making of the note as to preclude the subsequent transfer to a holder in due course; and even in such a case, or in the case of the party primarily liable on time paper already due, clearly the debtor has the right to be assured that the creditor has not previously transferred the instrument. To make sure of this it is necessary to impose at least the condition that the instrument be produced, and undoubtedly mercantile custom warrants the rule that in every case an obligor on negotiable paper
Fellows, 60 Wis. 339, 19 N. W. 101. Cf. Kennedy v. Moore, 91 Iowa, 39, 68 N. W. 1066.
91 Bowen v. Owen, 11 Q. B. 130; Finch v. Miller, 5 C. B. 428; Hepburn v. Auld, 1 Cranch, 321, 2 L. Ed. 122; Commercial F. Ins. Co. v. Allen, 80 Ala. 571, 1 So. 202; Jacoway v. Hall, 67 Ark. 340, 56 S. W. 12; Butler v. Hinckley, 17 Col. 523, 30 Pac. 260; West v. Farmers' Mutual Ins. Co., 117 Iowa, 147, 90 N. W. 523; Manhattan L. Ins. Co. v. Stubbs (Tex. Civ. App.), 216 S. W. 896.
92 Sanford v. Bulkley, 30 Conn. 344; Lindsay v. Matthews, 17 Fla. 575, 591; Holton v. Brown, 18 Vt. 224, 226, 46 Am. Dec. 148. Otherwise by statute in California, Iowa, South Dakota and a few other States. West v. Farmers' Mutual Ins. Co., 117 Iowa, 147, 90 N. W. 523; Pittsburg Plate Glass Co. v. Leary, 25 S. Dak. 266, 126 N. W. 271, 31 L. R. A. (N. S.) 746, Ann. Cas. 1912 B. 928.
93 In Richardson v. Jackson, 8 M. & W. 298, 299, it was said: "The case of Cole v. Blake, Peake N. P. 179, is a sufficient authority to warrant the Court in disposing of this application.
There Lord Kenyon says undoubtedly, 'that it had been determined that a party tendering money could not in general demand a receipt for the money.' But where no objection is made on that account, but the creditor refuses the money because he considers the amount is not sufficient, Lord Kenyon held that he could not afterwards object to the tender because the party making it required a receipt."
94 Scott v. Uxbridge, etc., R. Co., L. R. 1 C. P. 596; Sweny v. Smith, L. R. 7 Eq. 324; Peers v. Allen, 19 Grant Ch. (U. C.) 98.
95 Jones, Collateral Securities, Sec 545, citing Cass v. Higenbotam, 27 Hun, 406; Brooklyn Bank v. De-Grauw, 23 Wend. 342, 35 Am. Dec 569. The latter case does not involve the question, and the decision in the first case was reversed on appeal, 100 N. Y. 248, 3 N. E. 189.
96 Lindsay v. Matthews, 17 Fla. 575. See also Storey v. Krewson, 65 Ind. 397, 23 Am. Dec. 668; Loring v. Cooke, 3 Pick. 48; Potts v. Plaisted, 30 Mich. 149; McCormick v. McDonald, 70 Mo. App. 389.
97 Baker v. Wheaton, 5 Mass. 509, 512, 4 Am. Dec. 71; Fales v. Russell, 16 Pick. 315; Holton v. Brown, 18 Vt. 224, 46 Am. Dec. 148.
98 See supra, Sec. 835.
99 Berry v. Bank of Bakersfield (Cal.), 170 Pac. 415; Cass v. Higenbotam, 100 N. Y. 248,3 N. E. 189; First Nat. Bank v. Gidden, 175 N. Y. App. D. 563, 566, 162 N. Y. S. 317. C/. Robertson v. Sully, 2 N. Y. App. D. 152, 37 N. Y. 8. 935. See also Ocean Nat. Bank v. Fant, 50 N. Y. 474, holding a demand on the maker unaccompanied by a conditional tender of collateral security insufficient to charge an indorser; Schlesinger v. Wise, 106 N. Y. App. D. 587, 94 N. Y. S. 718, holding a refusal to return collateral justifies nonpayment of a note.
1 Storey v. Krewson, 55 Ind. 397,23 Am. Rep. 668; Halpin v. Phenix Ins. Co., 118 N. Y. 165, 23 N. E. 482; Wheelock v. Tanner, 39 N. Y. 481. See also Saunders v. Frost, 5 Pick. 259, 16 Am. Dec. 394; Salinas v. Ellis, 26 S. Car. 337, 2 S. E. 121. A debtor who demands a release of his mortgage should, however, tender the release for execution. Pettengill v. Mather, 16 Abb. Pr. 399. See also Laing v. Meader, 1 C. & P. 257.
1 Hansard v. Robinson, 7 B. & C. 90.
2 Osterman v. Goldstein, 32 N. Y. Misc. 676, 66 N. Y. S. 506.
is entitled to surrender of the instrument contemporaneously with payment. If so, he should be allowed to impose the condition of surrender on his tender, without making it ineffectual; and the law supports the custom.4