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 thing which is tendered, especially if money, must be actually produced and offered to the creditor as far as is in its nature possible, unless this requirement is waived.1 What amounts to waiver is discussed elsewhere.2 Some statutes make a written offer to pay money equivalent to tender if not accepted. Such statutes have no application to cases where the party making the tender has neither the intent nor the ability to perform.3
Production of money is not always conclusive tender. Thus the debtor produced money and laid it on the table before the creditor without counting it before him or letting him count it, and asked an extension for another year, which was granted. This was not a sufficient tender.4 Under some statutory provisions sufficient tender is made of an obligation which is payable at a specified place if the maker is at such place and is able and willing to pay it at maturity.5 Such a statute does not apply to a demand note.6 The fact that the maker of a note deposited the amount thereof at a specified place is not sufficient under such statute, unless it is shown that the maker resided at such place or had his place of business there.7
If a vendor of realty is bound to tender a conveyance to the purchaser, the deed must actually be produced unless such production is waived.8 A statement by the vendor that he has the deed in his pocket,9 or a statement by him that he will place a deed in the hands of a designated court,10 is insufficient as a tender of such conveyance.
1 Angier v. Equitable Building & Loan Association, 109 Ga. 625, 35 S. E. 64; Pinney v. Jorgenson, 27 Minn. 26, 6 N. W. 376; Deering Harvester Co. v. Hamilton, 80 Minn. 162, 83 N. W. 44; Greenfield v. Taylor, 141 Minn 399, 170 N. W. 345; North v. Mallett, 3 N. Car. (2 Hayw ) 151, 2 Am. Dec. 622; Lefferte v. Dolton, 217 Pa. St. 299, 118 Am. St. Rep. 913, 66 Atl. 527.
The possession of a sufficient amount of money to pay the debt does not amount to a tender. Brown v. Louisville & Nashville Ry., 103 Ky. 211, 44 S. W. 048.
2 See Sec. 2872 et seq.
3McCourt v. Johns, 33 Or. 561, 53 Pac. 601.
4 McTnerney v. Lindsay, 97 Mich. 238, 50 N. W 603.
5 Nichols v. Asbeck, - Cal. - , 178 Pac. 705; United States National Bank v. Shupak, 54 Mont. 542, 172 Pac. 324.
6 United States National Bank v. Shupak, 54 Mont. 542, 172 Pac. 324.
7 Nichols v. Asbeck, - CaL - , 178 Pac. 705.
8 Howard v. Higgins, 137 Cal. 227, 69 Pac. 1060; Lefferts v. Dolton, 217 Pa. St. 299, 118 Am. St. Rep. 913, 66 Atl. 527.
9 Lefferts v. Dolton, 217 Pa. St. 299, 118 Am. St. Rep. 913, 66 Atl. 527.
10 Howard v. Higgins, 137 Cal. 227, 69 Pac. 1060.
Tender by words is insufficient in the absence of an ability to perform.11 An attempted tender of a certain amount by one who does not possess such amount is insufficient.12