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.
Under the practice in force in some jurisdictions, payment into court could be made, under a rule or order of court, after action was brought.1 If such payment was made by the defendant under leave of court, and the plaintiff proceeded further, he did so at his peril.2 If the same cause of action was stated under a number of different counts and the defendant paid money in under one of such counts, and the plaintiff took it out, he could not recover costs upon remaining counts in which he had stated the same cause of action in a different form.3 If the defendant is permitted on application to pay into court the amount due up to that time with costs which have accrued up to that time, and the plaintiff proceeds with the action and recovers no more than the amount paid in, plaintiff must pay the remaining costs and the costs of the application.4 If the court has power to make such a rule, but has not made one, the act of the defendant in paying money into court is without legal effect.5
7 See Sec. 2853.
1 Levan v. Sternfield, 55 N. J. L. 41, 25 Atl. 854; Murray v. \\ indley, 29 N Car. 201, 47 Am. Dec. 324; Whiteman v. Perkins, 56 Neb. 181, 76 N. W. 547; Porter v Dixie Fire Ins. Co, 107 S. Car. 393, 93 S. E. 141.
"Under these circumstances it was the duty of the plaintiff or its assignors to tender performance on their part and to demand performance on the part of the defendants before subjecting them to the expense and annoyance of an action to recover the amount of the purchase price. Otherwise the sellers would have both money and property and the buyers nothing. The contract was for the purchase of property, not a lawsuit by which the property might be obtained. This is an action at law and unless the right to maintain it existed when it was brought, it did not exist at all. Courts of equity have plastic hands and can adjust matters as of the date of the trial, but courts of law are bound by rigid rules and unless the cause of action is ripe when the suit is commenced it is not one that can be enforced without the commencement of another action." Delaware Trust Co. v. Calm, 195 N. Y. 231, 88 N. E. 53.
2 Berry v Davis, 77 Tex. 191, 19 Am. St. Rep 748, 13 S W 978.
3 Snyder v. Quart on, 47 Mich. 211, 10 N W. 204; Powers v. Powers, 11 Vt 262.
4 Houston v Sledge, 101 N. Car. 640, 2 L R A 487, 88 E 145.
1 Watkins v Towers, 2 T. R. 275; State Bank v. Holcomb, 7 N. J. L. 193;