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 amount tendered must be equal to the amount of the indebtedness. Tender of less than the amount due is ineffective.1 A tender of a part of the amount due does not stop the running of interest upon the entire debt.2 If tender is made after interest has begun to run, it must include interest;3 and tender made after an action has been instituted must include costs,4 and the creditor's attorney's fee, where the right thereto given by statute has accrued.5 Tender of the additional sum suggested as a reasonable attorney's fee by the plaintiff's attorney is sufficient.6 If the action has been instituted without making the statutory demand, and hence the defendant is not liable for costs, tender need not include costs.7 So if expenses authorized by law have been incurred on account of the debtor's default, such as advertising a sale under a deed of trust,8 or expenses incurred by taking property under a chattel mortgage,9 the tender must include such expenses. Tender of the amount found to be due by a court of original jurisdiction is insufficient to stop interest if the amount is increased on appeal.10 Tender of an insufficient sum is not made valid by the fact that the debtor in good faith believes that he is tendering all that is due.11 If the debtor owes several distinct claims to his creditor, he may tender payment of one of them, leaving the other unpaid.12 The debtor must, in such case, notify the creditor that the tender is made for the specific debt. If without such notice the debtor tenders to the creditor upon his entire indebtedness a sum less than the entire amount due, but greater than one of the debts, it is insufficient.13 If a contract for the sale of realty contains no specific provision with reference to an encumbrance upon such realty, and such realty is in fact encumbered, a tender of the purchase price fixed by the contract, less the amount of such encumbrance is sufficient.14 Under some statutes, one upon whose property a tax has been imposed for a number of items, some of which are valid and some of which are not, can not make a sufficient tender by tendering the amount of the valid items, omitting the invalid items.15
1 1 Eastern Oregon Land Co. v. Moody, 198 Fed. 7; Bradford v. Fidelity Savings & Loan Society, 177 Cal. 247, 170 Pac. 404; Selby v. Third, 51 Mich. 1, 10 N. W. 180; Short v. Rogue River Irrigation Co., 82 Or. 662, 162 Pac. 845.
12 Bradford v. Fidelity Savings & Loan Society, 177 Cal. 247, 170 Pac. 404.
1 United States. Lilienthal v. McCor-mick, 117 Fed. 89, 54 C. C. A. 475; Pa cific Mail Steamship Co. v. Western Pac. R. Co., 251 Fed. 218
Alabama. McCalley v Otey, 103 Ala. 469, 15 So. 945.
California. Colton v. Oakland Bank of Savings, 137 Cal. 376, 70 Pac. 225; Bradford v. Fidelity Savings & Loan Society, 177 Cal. 247, 170 Pac. 404.
Iowa. Sansone v. Crocker, - la. - , 170 N. W. 796.
Massachusetts. Welch v. Adams, 152 Mass. 74, 9 L. R. A. 244, 25 N. E 34
Michigan. Montague v. Lougan, 68 Mich. 98, 35 N. W. 840.
Minnesota. Moore v. Norman, 43 Minn. 428, 19 Am. St. Rep. 247, 9 L. R. A. 55, 45 N. W. 857; Spoon v. Fram-bach, 83 Minn. 301, 86 N. W. 106.
North Carolina. Rand v. Harris, 83 if. Car. 486.
North Dakota. State v. Barnes, 22 N. D. 18. 37 L. R. A. (N.S.) 114, 132 N. W. 215.
Pennsylvania. McKibbn v. Peters, 185 Pa. St. 618, 40 AtL 288.
Wisconsin. Warden v Sweeney, 86 Wis 161, 56 N. W 647
A tender of the amount of a fine im-posed upon one of two criminals is in-suflicient if tendered in payment of the fine imposed upon both of them. State . v Barnes, 22 N D 18, 37 L. R A. (N. S ) 114, 132 N W 215
2 Pacific Mail Steamship Co. v. Western Pac. R. Co, 251 Fed. 218.
Indiana. Chicago & South Eastern Ry. v. Woodard, 159 Ind 541, 65 N. E 577.
Louisiana. Louisiana Molasses Co v. Le Sassier, 52 La Ann 2070, 28 So. 217 [judgment affirmed, 52 La Ann. 1768, 28 So 2231; Briede v Babst, 131 la 159, 59 So 106.
Massachusetts Weld v Eliot Five Cents Savings Bank, 158 Mass. 339, 33 N. E. 519.
Oklahoma. Bell v. Riggs, 34 Okla 834, 41 L R A (NS) 1111, 127 Pac. 427
Washington. Ralph v. Lomer, 3 Wash 401. 28 Pac 760
The fact that the amount of interest which is not tendered is comparatively small does not make the tender Ruf-flclent Bell v Riggs, 34 Okla 834, 41 L. R A. (NS ) 1111, 127 Pac 427.
4 Iowa. Martin v Whisler, 62 Ia 416, 17 N W. 593; Sansone v. Crocker, - Ia. - , 170 N W. 796.
Kentucky. Samuela v. Simmons (Ky ),60 S. W. 937.
Minnesota. Seeger v. Smith, 74 Minn. 279, 77 N. W. 3.
Nebraska. McEldon v. Patton (Neb), 93 N W. 938
Ohio. Burt v. Dodge, 13 Ohio 131.
Texas. Berry v Davis, 77 Tex. 191, 19 Am St Rep 748, 13 S W 978
5 Chicago & South Eastern Ry. v. Woodard, 159 Ind. 541, 65 N. E. 577.
So where the mortgage provides for an attorney's fee and such provisions are upheld. Fuller v Brown, 167 111 293, 47 N E 202 [affirming, 68 IIl App. 2391
6 Smith v. Jackson, 153 111. 399, 39 N E 130
7 People's Furniture & Carpet Co. v. Crosby. 57 Neb. 282, 73 Am St. Rep. 504, 77 N W 658
8 McNieoe v. Eliaaon, 78 Md 168, 27
Atl. 940; McClung v. Trust Co., 137 Mo 106. 38 S. W 578.
9 Could v. Armagost, 46 Neb. 897, 65 N W 1064.
10 Wolfort v Reilly, 133 Mo 463, 34 S W. 847, Neilson v. Chicago ft Northwestern Ry., 91 Wis. 557, 64 N. W. 849.
11 TTclphrey v. Chicago & Rock Island Ry, 29 la. 480; Patnotc v. Sanders, 41 Vt. 00, 98 Am. Dec 504.
12 Carleton v Whitcher, 5 N Il 289
13 Shuck v. Chicago-, Rock Island ft Pacific Ry, 73 Ia 333, 35 N W 429.
14 Horgan v. Russell, 24 N. D 490, 43 L R A (NS.) 1150, 140 N W 99
15 Schiller v. Douglass, 74 Kan 231 86 Pac 132.
If the exact amount which is due is not ascertainable,16 as where an accounting is necessary,17 or where there are outstanding rights the amount of which can be determined only by a judicial decree,18 tender,19 or at least an exact tender,20 is excused.