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.
If the contract provides for the place of payment, tender may be made there even if the creditor is absent.1 If no place of payment is fixed by the contract, tender must be made to the creditor in order to stop interest 2 Tender of a personal debt may be made at the residence of the creditor if the debtor can find such residence by the use of reasonable diligence.3 It is the duty of the debtor to find the creditor and make tender to him, and not the duty of the creditor to find the debtor and make demand for payment.
Wright v. Behrens, 30 N. J. L. 413; Levari v. Sternfield, 55 N. J. L. 41, 25 Atl. 854.
See also, Browning v. Chamberlain, 210 N. Y. 270, 104 N E. 627.
2 "Lord Ellenborough, C. J., stopped Holroyd, who was to have argued in support of the demurrer, and asked the defendant's counsel if he could show any case where an averment of touts temps prist was holden not to be necessary in a plea of tender: it was expressly decided to be necessary in Giles v. Hartis (1 Lord Raym. 254, and vide Wood v. Ridge, Fort. 376), and was one of those landmarks in pleading that ought not to be departed from. The defendant has been guilty of a neglect, in non-payment of money at a certain day, upon which a cause of action arises to the plaintiff. It in no answer to shew that at a day subsequent he was ready to have paid it, unless he were always ready to have paid it from the time when it first became due. And no injustice is done; because the defendant may get relief by application to the court for leave to pay the principal and interest into court, after which the plaintiff proceeds at his peril." Hume v. Peploe, 8 East. 168.
3 Baillie v. Cazelet, 4 T. R. 570.
4 Zeevin v. Cowell, 2 Taunt. 202.
5 Dewey v. Humphrey, 22 Mass. (5 Pick.) 187; Levan v. Sternfield, 55 N. J. L. 41, 25 Atl. 854.
See also, Baker v. Hunt, 1 Wend. (N. Y.) 103, where a motion for an order to compel the clerk to pay such money over to the plaintiff instead of returning it to the defendant was denied.
1 Maine. Aldrich v. Albee, 1 Me. 120, 10 Am. Dec. 45.
New Hampshire. Wiggin v. Wiggin, 43 N. H. 567, 80 Am. Dec. 192
Pennsylvania. Roberts v. Beatty, 2 P. & W. (Pa.) 63, 21 Am. Dec 410.
Tennessee. Stansbury v Embrey, 128 Tenn. 103, 47 L. B. A. (N.S.) 980, 158 S. W. 991
Texas. Deel v Berry, 21 Tex. 463, 73 Am. Dec. 236.
Vermont. Contract to deliver goods. Barney v. Bliss, 1 D. Chip. (Vt) 399, 12 Am. Dec. 606.
Failure to make tender at that place renders the tender insufficient in the absence of waiver. Bonewell v. Jacobson, 130 Ia. 170, 5 L. R. A. (N.S.) 436, 106 N. W. 614.
The mere fact that a note is dated at a certain place does not make it payable there.4 If the contract provides for the delivery of personal property at a specified place, the debtor must tender such property at such place.5 Under a contract which provides for the delivery of chattels without specifying the place, tender should be made to the creditor at his residence or place of business, if the chattels are portable.6 If the creditor is absent from the state, the debtor is not obliged to make personal tender to him.7 If the articles are not portable, the general rule seems to be that the debtor must call upon the creditor to indicate at what place he elects to receive such articles, and if he indicates a reasonable place tender must be made there8 If the creditor can not be found, or if he refuses to indicate a reasonable place for delivery, the debtor may select a reasonable place, and make tender there, after giving notice thereof to the creditor if it is possible to give such notice by the exercise of reasonable diligence.9 A vendee who has an option to avoid liability by redelivery docs not make a valid tender by notifying the vendor that he holds subject to the vendor's orders.10 A statement in a pleading filed by a minor seeking to avoid liability for a sale induced by an alleged concealment by him of the fact of infancy, that the goods are in his possession and that the vendors could "come and get them if they chose/' is not a sufficient tender.11
2 Galloway v. Smith, Litt. Sel. Cas. (Ky.) 132; McNair v. Moore, 55 S. Car. 435, 73 Am. St. flop. 760, 33 S. E. 401.
3 Wagers v. Dickey, 17 Ohio 430, 49 Am. Dec. 467; La Fargo v. Rickert, 5 Wend. (N. Y.) 187, 21 Am. Dec 209.
4 McNair v. Moore, 5.5 S. Car. 435, 73 Am. St. Rep. 760, 33 S. E. 401.
5 Smith v. Loomis, 7 Conn 110; Mitchell v. Gregory, 4 Ky (1 Bibb.) 449,4 Am. Dec 655; Wheelock v. Tanner, 39 N. Y. 481.
6 Miles v. Roberts, 34 N. H. 245; 6antee v. Santee, 64 Pa. St. 473.
Contra, the place is the residence of the debtor. Grant v. Groshon, 3 Ky. (Hard.) 85, 3 Am. Dec. 725; Chambers v. Winn, 2 Ky. (Sneed) 166, 2 Am. Dec. 713.
7 Trimble v. Williamson, 49 Ala. 525; Angell v. Loomis, 97 Mich 5, 55 N. W. 100S; Gill v. Bradley, 21 Minn. 15.
8 Mason v Briggs, 16 Mass. 453; Currier v. Currier, 2 N. H. 75, 9 Am. Dec. 43; Sheldon v. Skinner, 4 Wend. (N. Y ) 525, 21 Am Dec 161.
9 Miles v. Roberts, 34 N. H 245.
10 Langston v. Bitting, 96 Ga. 410, 23 S. E. 308.