This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The creditor may, however, waive certain of these requisites of a valid tender. If the debtor is ready and willing to pay the money, the actual production of it may be waived by. the absolute refusal of the creditor to accept it.1 By statute refusal to accept an offer of performance excuses production of tht thing to be delivered in performance. This includes payment of money.2 Thus the mortgagee's denial of the mortgagor's right to make such payment excuses formal tender.3 So does a denial of the right of one seeking to redeem for non-payment of taxes.4 So does the creditor's refusal to accept payment of a debt for which he holds a lien on a horse unless another debt not a lien is also paid,5 or demand of interest for an excessive period.6 If the debtor offers to pay the amount due and is able to produce it in a few minutes actual tender is excused by the creditor's refusal to accept. So if the debtor states that he has money in a bank in the same building as that in which the con -versation occurs, and offers to get it and pay the debt, the refusal of the creditor to receive it waives actual production of the money.7 The same principle applies where the money is in another bank in the same town and can be reached in a few minutes.8 A refusal to accept, coupled with a demand for the production of the money, does not waive its production.9 The same principle applies to a refusal to accept a tender of chattels, as a stock certificate.10 So an offer to convey a patent right is sufficient tender where such offer is refused.11 The debtor must, however, have been willing and able to make tender, and the refusal must have prevented a tender which he was about to make, to excuse the actual production of the money,12 as where the vendor under an executory contract of sale insisted that the contract was forfeited and conveyed to another.13 Thus if the creditor refuses to accept legal-tender notes and demands coin,14 or refuses to accept anything less than an excessive amount,15 or refuses to deal with the debtor,16 or refuses to remain long enough to give the debtor an opportunity to count out the money,17 actual tender is waived. A public officer is not such an agent of the party for whose benefit he may be required to act, that he has general authority to waive elements of tender. However, if the officer to whom by law tender should be made voluntarily accepts something which is not legal tender, such as a check18 or a certificate of deposit,19 this is sufficient to keep the tender good. This is especially true where money has been tendered to the sheriff and he has requested that a check be given instead. Thus a mortgage debt was payable in gold coin. To redeem the property after sale tender of the proper amount of gold coin was made to the sheriff. He asked for a certified check instead. The coin was thereupon deposited in the bank, and a certified check obtained which was delivered to the sheriff. The check was not expressly made payable in gold coin, but when cashed by the sheriff it was in fact paid in gold. This was held to be a sufficient tender.20
1 Bailey v. Buchanan, 115 N. Y. 297; 6 L. R. A. 562; 22 N. E. 155.
2 Holton v. Brown, 18 Vt. 224; 46 Am. Dec. 148.
3 Malone v. Wright, 90 Tex. 49; 36 S. W. 420; modifying 34 S. W. 455.
1 Caesar v. Capell, 83 Fed. 403; Hodges v. Verner, 100 Ala. 612; 13 So. 679; Crawford v. Liddle, 101 la. 148; 70 N. W. 97; Jopling v. Walton, 138 Mo. 485; 40 S. W. 99; Zebley v. Trust Co., 139 N. Y. 461; 34 N. E. 1067.
1 Hills v. Bank. 105 U. S. 319; O'Connor v. Morse, 112 Cal. 31, 53
Am. St. Rep. 155; 44 Pac. 305; Peckham v. Stewart, 97 Cal. 147; 31 Pac. 928; Hall v. Ins. Co., 57 Conn. 105; 17 Atl. 356; Wood v. Bangs, 2 Penne. (Del.) 435; 48 Atl. 189; Blair v. Hamilton, 48 Ind. 32; Champion Machine Co. v. Mann, 42 Kan. 372; Sonia Cotton Oil Co. v. The Red River, 106 La. 42; 87 Am. St. Rep. 294; 30 So. 303; Hazard v. Loring, 10 Cush. (Mass.) 267; Jones v. Assurance Co., 120 Mich. 211; 79 N. W. 204; Pinney v. Jorgensen, 27 Minn. 26; 6 N. W. 376: Stephenson v. Kilpnt-rick, 166 Mo. 202: 65 S. W. 773;
Girard v. Wheel Co., 123 Mo. 358; 45 Am. St. Rep. 556; 25 L. R. A. 514; 27 S. W. 648; McCormick v. Hiekey, 56 N. J. Eq. 848; 42 Atl. 1019; Brock v. Hidy, 13 O. S. 306; Westmoreland, etc., Co. v. De Witt, 130 Pa. St. 235; 5 L. R. A. 731; 18 Atl. 724; Hampton v. Speckenagle, 9 S. & R. (Pa.) 212; 11 Am. Dec. 704; MePherson v. Fargo, 10 S. D. 611; 66 Am. St. Rep. 723; 74 N. W. 1057; Rogers v. Tindall, 99 Tenn. 356; 42 S, W. 86; Koon v. Snod-grass, 18 W. Va. 320; Griesemer v. Ins. Co., 10 Wash. 202; 38 Pae. 1031; Wright v. Young, 6 Wis. 127; 70 Am. Dec. 453.
2 Latimer v. Land Co., 137 Cal. 286; 70 Pac. 82.
3 Shank v. Groff, 45 W. Va. 543; 32 S. E. 248.
4 Poling v. Parsons, 38 W. Va. 80; 18 S. E. 379.
5 Bowden v. Dugan, 91 Me. 141; 39 Atl. 467.
6 Stewart v.. Henry County, 66 Fed. 127.
7 Smith v. Loan Association, 119 N. C. 257; 26 S. E. 40.
8 Steckel v. Standley, 107 la. 694; 77 N. W. 489.
9 Niederhauser v. Ry., 131 Mich. 550; 91 N. W. 1028.
10 Williams v. Patrick, 177 Mass. 160; 58 N. E. 583.
11 Adams v. Turner, 73 Conn. 38; 46 Atl. 247.
12 MeCalley v. Otey, 99 Ala. 584; 42 Am. St. Rep. 87; 12 So. 406; Shank v. Groff, 45 W. Va. 543; 32 S. E. 248.
13 McWhirter v. Crawford, 104 la. 550; 72 N. W. 505. Modified on rehearing, 73 N. W. 1021.
14 Hanna v. Ratekin, 43 111. 462.
15 Ashburn v. Poulter, 35 Conn. 553.
16 Sands v. Lyon, 18 Conn. 18.
17 Schayer v. Loan Co., 163 Mass. 322; 39 N. E. 1110; Raines v. Jones, 4 Humph. (Tenn.) 490.
18 Paid to Sheriff. Hooker v.
Burr, 137 Cal. 663; 70 Pac. 778. Paid to clerk of court. Jessup v. Carey, 61 Ind. 584. Paid to register of deeds. Carter v. Lewis. 27 Mich. 241.
19 Paid to the clerk. Steckel v. Standley, 107 la. 694; 77 X. W. 489. Contra, a certificate of deposit payable to the order of the clerk was held not sufficient to keep a tender good. Smith v. Bank. 14 Ohio C. C. 199; 8 Ohio C. D. 176.
20 Hooker v. Burr, 137 Cal. 663; 70 Pac. 778.