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 practical injustice of permitting a plaintiff to prosecute an action and to recover interest and costs after the defendant has tendered the principal of a liquidated money debt, together with interest down to the date of the tender, has caused a change in the law, in part due to direct legislation intended to accomplish this result, in part due to change of judicial decision, and in part due to the abandonment of the technical formality of common-law pleading; and it is now held in many jurisdictions that a tender of the principal of a liquidated debt payable in money, together with interest down to the date of the tender, is sufficient, although such tender is not made until after maturity and until after the debtor is in default.1 If the mortgagee has the option to declare the entire mortgage debt due for default in payment of interest, a tender of interest after default in payment thereof, but before the mortgagee has elected to exercise such option, prevents the mortgagee from exercising such option thereafter.2 A tender after default divests the lien of a chattel mortgage.3 If a series of notes contains a provision to the effect that the holder may declare the entire series due in case of default in the payment of any one of them and such notes are payable to any bank in a given place which the holder may elect, and the holder does not elect any bank and leaves the state after the maturity of such note, the maker may after such maturity elect to deposit the amount of such note with interest in the bank in such place in which the holder of such note keeps his account; and such tender is sufficient to prevent the holder from exercising his option to declare the remaining notes due.4 Even if a public service corporation has a right to make a rule to the effect that service shall be discontinued to a consumer after a certain period of default in payment, tender after default but before the service is discontinued deprives the public service corporation of the right to discontinue service thereafter.5
3 Hume v. Peploe, 8 East. 168.
4 Hume v. Peploe, 8 East. 168.
5 May v. Cooper, Fort. 376.
6 City Bank v. Cutter, 20 Mass. (3 Pick ) 414.
7 Poole v. Crompton, 5 Dowl. 468.
See also, Dewey v. Humphrey, 22 Mass. (5 Pick.) 187, where It was found that the defendant tendered the full amount of the debt and damage.
8 Cotton v. Godwin, 7 M. & W 147, 9 Dowl. 763.
9 Maynard v. Hunt, 22 Mass (5 Pick ) 240.
10 Suffolk Bank v. Worcester Bank, 22 Mass. (5 Pick.) 105
11 Suffolk Bank v. Worcester Bank, 22 Maes. (5 Pick.) 105,
The statutes which permit tender after default, although they are remedial in their terms, are not extended so as to include cases which are not within their general scope.6
1 Little Rock Railway & Electric Co. v. Leader Co, 125 Ark. 418, L R A. 1917C, 374, 188 S W 1182; Loughborough v McNevin, 74 Cal. 250, 5 Am. St Rep. 435, 14 Pac 369. 15 Pac. 773; Tracy v Strong, 2 Conn 650; Clark v. Paddock, 24 Ida 142, 46 L R. A (NS) 475, 132 Pac 705; Salinas v. Ellis, 26 S. Car 337. 2S.E 121.
2 Clark v Paddock, 24 Ida 142, 46 L R A (NS) 475, 132 Pac. 705
3 Could v Armagost, 46 Neb. 807, 65 N W. 1064; Thomas v. Seattle Brewing & Malting Co., 48 Wash. 560, 15 L
R A (NS) 1IGI, 94 Pac 116; Gauche v Milbrath, 04 Wis 674, 60 N W. 900.
See also, Young v. Daniels, 2 Ia 126, 63 Am Dec. 477.
4 Stansbury v. Embrey, 128 Tenn. 103, 48 L. R. A. (M.S.) 980, 158 S. W 991
5 Little Rock Railway & Electric Co. v. Leader Co, 125 Ark. 418, L R. A. 1917C, 374, 188 S W. 1182.
6 Whiteman v Perkins, 56 Neb 181, 76 N. W 547; Houston v Sledge, 101 N Car 640. 2 L R A. 487, 8 S E. 145; Berry v. Davis, 77 Tex 101, 10 Am. St. Rep. 748, 13 S W 978.
If the covenant is not one for the payment of money only, tender after default presents not only the question of the time of making tender, but also the question of the right to tender unliquidated damages. This question is discussed elsewhere.7