Whether an obligation is one the performance of which may be tendered, so as to have the legal effect of a valid tender, depends in part on the question whether tender is made when performance is due, or whether it is not made until after breach, and in part upon the nature of the thing which the party has promised. If tender is made at the time at which performance is due, the party who makes such tender has avoided the consequences of default. This principle applies alike to covenants for the payment of money, and to covenants for the performance of something other than the payment of money, such as covenants to convey property, to perform services, and the like. If the party who tenders performance does not make such tender until after the time fixed by the contract for performance and until after he is thus in default, his right to make a tender depends upon the nature of the thing which he has promised. While the weight of authority is in favor of the view that, at original common law, tender could not be made after default, no matter what the covenant,1 there was, even at common law, some authority in favor of the view that if default is made in performance of a covenant to pay a fixed and liquidated sum of money only, and if the amount of damage due by reason of such default is susceptible of mathematical calculation, the party in default may make a valid tender of such performance;2 and this is now the prevalent view at modern law.3

If default is made in a covenant for the payment of something other than a fixed and liquidated sum of money, the damages which arise by reason of such breach are ordinarily unliquidated and not susceptible of mathematical computation. At common law, tender of such unliquidated damages could not be made;4 that is, if such tender were refused by the party to whom performance was due, no legal consequences followed such attempted tender.5 If there are several breaches of the same contract, and the damages on some of these breaches are liquidated, while on others they are unliquidated, a tender of all the damages on all of such breaches can not be made.6 It has been held, however, that a plea of tender may be made to a count in quantum meruit.7

1 See Sec. 2855.

2 "I should be sorry that it should be doubted for a moment, that where there is a mere dry covenant for payment of money, it may not be tendered *' Johnson v. Clay, 7 Taunt. 486.

3 This principle is assumed in a great many cases in which it is not thought necessary to decide it; and in which the question which is presented to the court is not the right to make a tender, but whether a valid and sufficient tender has in fact been made.

See Sec. 2862 et seq.

4 England. Dearie v. Barrett, 2 Ad. & E1. 82; Davys v. Richardson, 21 Q. B. D. 202

Alabama.. Southern Ry. Co. v. Harris, - Ala - , 80 So. 101.

Arkansas. Day v Lafferty, 4 Ark. 450

Illinois. Gregory v. Welle, 62 III. 232

Vermont. Green v. Shurtliff, 19 Vt. 592

"Under the common law, tender is not avoidable where the action is for unliquidated damages, the amount of which is subject to the jury's discreturn." Southern Ry. Co. v. Harris, - Ala. - , 80 So. 101.

The practical result of the rule denying tender of unliquidated damages was so unsatisfactory in certain classes of obligations that in some jurisdictions it has been changed by legislation, and provision has been made that tender of a specified amount, if kept good,8 shall prevent recovery of interest and costs if the party who refuses such tender does not recover more than the amount thereof.9

If the contract is one for the delivery'of something other than money, tender of such articles can not be made after breach.10 This principle applies to contracts to pay current funds other than legal tender,11 such as bank notes12 or Confederate currency.13 The reason given for the result which is reached in contracts to pay in something which is not legal tender, on the one hand, but is actually current as money, on the other, is that it is money of fluctuating value; and that in case of default one party or the other may have to perform more or to receive less than the terms of the original contract contemplated.14

"The only remaining question for our consideration is presented by the demurrer to the plea of tender. We consider the law well settled, that, if a party covenants to pay in specific articles, he must meet his contract at the time and in the manner specified. Tender can not be made after the day, unless the damages are capable of being reduced to certainty, by computation; nor can it be pretended that it is possible to do so, in this instance, without the intervention of a jury. Even if a party failed to make a defense, a writ of inquiry must issue to ascertain the damages. It is, therefore, not one of these cases in which the doctrine of tender is applicable." Day v. Lafferty, 4 Ark. 450.

The same principle applies to a tender of unliquidated damages arising out of a tort. Ganus v. Tew, 163 Ala. 358, 50 So. 1000; Cilley v. Hawkins, 48 111. 308; Wunrath v. People's Furniture & Carpet Co., 98 Neb. 342, 152 N. W. 736.

5 Dearie v. Barrett, 2 Ad. & El. 82; Davys v. Richardson, 21 Q. 8. D. 202; Gregory v. Wells, 62 111. 232; Green v. Shurtliff, 19 Vt. 592.

The same principle applies to a tender of unliquidated damages arising out of a tort. Ganus v. Tew, 163 Ala. 358, 50 So. 1000; Cilley v. Hawkins, 48 111. 308; Wunrath v. People's Furniture & Carpet Co., 98 Neb. 342, 152 N. W. 736.

6 Green v. Shurtliff, 19 Vt. 219.

7 Johnson v. Lancaster, 1 Strange 576.

8 See 2871.

9 Solomon v. Bewicke, 2 Taunt. 317; Frantz v. Rose, 89 111. 590.

100 Powe v. Powe, 42 Ala. 113; Day v. Lafferty, 4 Ark. 450; Stucker v. Miller, 15 Ky. (5 Litt.) 235.

11Powe v. Powe, 42 Ala. 113; Day v. Lafferty, 4 Ark. 450; Stucker v. Miller, 15 Ky. (5 Litt.) 235.

12Day v. Lafferty, 4 Ark. 450; Stucker v. Miller, lb Ky. (5 Litt.) 235.

13 Powe v. Powe, 42 Ala. 113.

If a tender of unliquidated damages is made and accepted, the transaction amounts to an accord and satisfaction,15 and the original liability is thus discharged.16