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 debtor tenders an amount which is greater than the true amount of the indebtedness, such tender is said to be sufficient if the circumstances under which it is made indicate that the surplus over and above the true amount of the debt is to belong to the creditor.1 While a tender of an excessive amount is said to be sufficient, it is said that if such tender of an excessive amount is withdrawn and the exact amount is tendered at a later time, the tender dates from the time at which it is made.2
The result which is reached in cases of this sort is undoubtedly just, especially in cases in which there is some doubt as to the actual amount due, and in which the debtor has tendered an excessive amount by way of precaution. The only difficulty which would prevent this rule from being adopted in all cases is that the creditor can not be compelled to accept a larger amount than is due, any more than any other person can be compelled to accept a benefit which he is unwilling to accept. The true solution of these cases may possibly be that the creditor, by a refusal to accept the amount, waives the objection that the amount is excessive;3 and it is possible that if the creditor indicated the exact amount due and refused to accept the tender on the ground that the amount was excessive, the tender might be regarded as insufficient.
If the amount which is tendered is divisible, so that the true amount which is due may be taken from the total amount tendered without making change, it is said that the debtor may tender a larger amount than is due and he may demand that the creditor take therefrom the true amount.4 This result has boon explained by saying that a tender of the greater includes the less,5 although this maxim has also been used to justify a tender of an amount in excess of the true debt if the surplus is to belong to the creditor.6
16 Spinks v. Jordan, 108 Miss. 133, L. R. A. 1915C, 634, 66 So. 405; Rockland-Rock port Lime Co. v. Leary, 203 N. Y. 469, L. R. A. 1916F, 352, 07 N. E. 43.
17 Spinks v. Jordan, 108 Miss. 133, L. R. A. 1915C, 634, 66 So. 405.
18 Rockland Rockport Lime Co. v. Leary, 203 N. Y. 469, L. R. A. 1916F, 352, 97 N. E. 43.
19 Spinks v. Jordan, 108 Miss. 133, L. R. A. 1915C, 634, 66 So. 405.
20 Rockland-Rockport Lime Co. v. Leary. 203 N. Y. 469, L. R. A. 1916F, 352. 97 N. E 43. Notes to Section 2865...........
1 Patterson v. Cox, 25 Ind. 261; Hansconi v. Hinman, 30 Mich. 419; Wilson v Duplin Telephone Co., 139 N. Car. 395, 52 S E. 62; Odom v. Carter, 36 Tex. 281.
2 Odom v. Carter, 36 Tex. 281.
3 See Sec. 2873.
It has been said, however, that if the amount which is tendered is not divisible and if the debtor demands that the creditor make change, so that the creditor will not receive the surplus, the tender is insufficient.7 This principle has been applied where the change which was demanded was between five and ten dollars,8 on the theory that if the right to make change were recognized, there would be no limit to it, and that a tender of a single bank note of enormous amount might be made for a very small debt.9 On the other hand, the sufficiency of a tender in excess of the amount with the demand that the creditor take out the amount due, has been recognized,10 although no emphasis was placed on the fact that the amount which was tendered was divisible, so that it was unnecessary to make change.11
It has been held, however, that a common carrier of passengers must furnish change to a reasonable amount,12 so that it is not unreasonable for a passenger to tender five dollars in one piece and ask for change in paying a five-cent fare.13 On the other hand, it is held that even if it is the duty of the common carrier to make change in a reasonable amount, the party who makes the tender can not demand that the change be paid over to him before he pays to the carrier the amount which he is tendering.14
The carrier may refuse to make change in excess of a reasonable amount, and he may exact a valid and enforceable rule to this effect.15 It is said, however, that if the passenger expresses a willingness to wait for his change until his destination at a large town is reached, he may tender a much larger amount than if he demands change at once, since a demand for change which may be unreasonable if for immediate payment would be reasonable if the passenger offered to wait until some large town were reached.16 If the tender is not made in proper form, it does not, of course, gain any validity from the fact that the amount is in excess of the true amount.17
4 Wade's Case, 6 Coke 114a; Dean v. James, 4 Barn. & Ad. 546.
5 Wade's Case, 5 Coke 114a.
6 Patterson V. Cox, 25 Ind. 261. 7Betterbee v. Davis, 3 Camp. 70; Perkins v. Beck, 4 Cranch C. C. 68.
8 Tender in English money. Better-bee v. Davis, 3 Camp. 70; Robinson v. Cook, 6 Taunt. 336.
9 Botterbee v. Davis, 3 Camp. 70.
10 Walsh v. Colvin, 53 Wash. 300, 101 Pac. 1085.
11 Walsh v. Colvin, 53 Wash. 309, 101 Pac. 1085.
12 Barrett v. Market Street Ry., 81 Cal. 296, 15 Am. St. Rep. 61, 6 L. R.
A. 336, 22 Pac. 859; Burge v. Georgia Ry. & Electric Co., 133 (la. 423. 65 S. E. 879; Jones v. Louisville & Nashville Ry., 109 Miss. 655, 68 So. 924.
13 Barrett v Market Street Ry, 81 Cal. 296, 15 Am. St. Rep. 61, 6 L. R. A. 330, 22 Pac. 859.
14 Louisville & Nashville Ry. v. Cot-tcngira '(Ky.), 13 L. R. A. (NS.) 624, 104 S. W. 280, 31 Ky. L. R. 871.
15 Barker v. Central Park, North & East River Ry., 151 N. Y. 237, 56 Am. St. Rep. 626, 35 L. R. A. 489, 45 N. E. 530; Funderburg v. Augusta & Aikin Ry., 81 S. Car. 141, 21 L. R. A. (N.S.) 868, 61 S. E. 1075; Knox-