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.
At common law a plea of tender was said to be insufficient unless the defendant alleged that he had always been ready to perform entirely the contract on which the action was founded;1 and accordingly a tender after performance was due, was said to be insufficient even if the covenant was one for the payment of money only.2 A reason which has been assigned for holding that a tender of the principal after maturity, together with interest, is insufficient, is that the damages have varied as the rate of interest has changed; and that the court has the power to send the case to a jury to make the computation, although it is the usual practice in the discretion of the court to refer it to an officer of the court to make such computation.3 It is said, furthermore, that a plea of tender is a plea in bar which must show that the plaintiff never had any cause of action; and that a plea of tender after maturity admits that he once had a cause of action and attempts to show that such cause of action has been discharged by such subsequent tender.4
1 "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 fur as he was able, by tendering the requisite money; the plaintiff himself precluding a complete performance, by refus-inging to receive 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 is 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 defense against the plaintiff - In which respect the plea of tender is essentially different from that of payment of money into court. And, as the plea is thus to constitute an answer to the action, it must, we con ceive, be deficient in none of the requisite qualities of a good plea in bar.
"With respect to the averment of toujours prist, if the plaintiff can falsify It, he avoids the plea altogether. Therefore, if he can shew that an entire performance of the contract was demanded and refused, at any' time when, by the terms of it, he had a right to make such a demand, he will avoid the plea. Hence, if a demand of the whole sum originally due is made and refused, a subsequent tender of part of it, is bad, notwithstanding that, by part payment, or by other mean*, the debt may have *been reduced, in the interim, to the sum tendered. And this is the principle of the decision of Cotton v. Godwin (7 M. & W. 147). If, however, the demand were of a larger sum than that originally due under the contract, a refusal to pay it would not falsify the tou-jours prist, even though the amount demanded were made up of the sum due under the contract, and some other debt due from the defendant to the plaintiff. And this is the principle of the decisions of Brandon v. Newing-ton (3 Q B 915), and Hcskcth v. Faw-cett (11 M. & W. 356), which appear to overrule Tyler v. Bland (9 M. & W. 338).
"This principle, however, we think, is only applicable where the larger sum is demanded generally, and can hardly be enforced where it is explained to the defendant at the time how the amount demanded is made up, for, in such case, the transaction appears to be nothing less then a simultaneous demand of the several debts, so as to falsify the averment of toujours prist as to each. But, besides the averment of readiness to perform the plea must aver an actual performance of the entire contract on the part of the defendant, as far as the plansiff would allow. And it is plain that where, by the terms of it, the money is to be paid on a future day certain this branch of the plea can only be satisfied by alleging a tender on the very day. And this is the principle of the decisions of Hume v Peploe (8 East N.B.), and Poole v. Tunbridge (2 M & W. 223). It is also obvious that the defect in the plea in this respect can nut be remedied by resorting to the previous averment of toujours prist. Consequently, a plea by the acceptor of a bill, or the maker of a note, of a tender post diem, is bad, notwithstanding the tender is of the amount of the bill or note, with interest from the day it became due up to the day of the tender, and notwithstanding the plea alleges that the defendant was always ready to pay, not only from the time of the tender (as the plea was in Hume v. Peploe), but also from the time when the bill or note became payable. On the same reasoning, it appears to us that this branch of the plea can only be satisfied by alleging a tender of the whole sum due under the contract, for that a tender of part of it only is no averment that the defendant performed the whole contract as far as the plaintiff would allow.
"If it be said that the plea of tender is, in effect, only in preclusion of damages subsequent to the tender, and that it would be unjust to give the plaintiff those damages which have been incurred merely in consequence of his refusal to receive the money tendered, the answer is, that the same argument might be applied to the instance of the tender post diem of the amount of a bill or note, with the interest then due; but that, in each ease, the defendant is unable to allege that he has performed the terms of his contract as far as the plaintiff would allow him, and is, therefore, disabled from pleading a tender." Dixon v. Clark, 5 C. B. 365.
2 May v. Cooper, Fort. 376; Giles v. Ilartis, 1 Lord Raymond 254; Suffolk Bank v. Worcester Bank, 22 Mass. (5 Pick) 105; Dewey v. Humphrey, 22 Mass (5 Pick ) 187; Maynard v. Hunt, 22 Mass. (5 Pick.) 240.
"Per Holt, chief justice, where debt is brought upon a bond conditioned to pay money at a day certain, if the defendant pleads a tender at the day, and that he had been always ready, etc., it is good. But in assumpsit, or debt upon a single bill, he must plead that he has been always ready; for though the defendant tendered the money, and has been always ready since the tender to pay it, yet the plaintiff may have demanded it before, it being a duty from the time of the promise; and if the defendant did not pay it upon demand, his promise was broken, though he tendered it afterwards. But if he pleads that he was always ready, this refers to the time of the promise made, and. not to the time of the tender." Giles v. Hartis, 1 Lord Raymond 254
A plea of tender after imparlance was held to be insufficient; although it did not appear clearly whether the tender was made at maturity or thereafter. Wood v. Ridge, Fort. 376.
The objection to permitting a plea of tender after imparlance seems to have been that the plea must allege that he was always ready to perform, and that a plea after imparlance can not relate to matters occurring prior to imparlance. Giles v. Hartis, 1 Lord Raymond 254, 2 Salk. 622.
See, however, as recognizing tender of money only after default, Johnson v. Clay, 7 Taunt. 486.
If the tender was but a day too late, it was insufficient.5 In some of the cases in which this rule is insisted upon, the tender seems to have been for the amount of the principal only without interest;6 but at the same time the rule has been applied where principal and interest down to the date of the tender were offered.7 If a note was not paid on demand in accordance with its terms, and subsequently the maker acquired a set-off against the holder, a tender of the difference between the amount of the note and the amount of the set-off was insufficient.8 In an action by a mortgagee to recover possession after breach of condition, a tender by the mortgagor after default is insufficient,9 since in such cases his relief is in equity. Even in jurisdictions in which this principle has been applied, it is said that a tender after maturity not only stops a statutory penalty which is imposed as long as default shall continue,10 but it also stops interest as damages.11