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, however, the debtor attempts to impose any conditions not required by law,1 such as demanding that the tender be accepted as full performance,2 or that a discharge3 or a release in full4 be given, or that a right of appeal be waived,5 or that in connection with the debt in question other claims between the same parties be settled,6 or that payment be made at a place other than that specified in the contract,7 the tender is insufficient. If a debt is secured by a mechanic's lien, the debtor can not insist upon a release of such lien as a condition of accepting the tender, if the creditor claims a larger amount than the sum tendered, even if the amount which is tendered is all that is in fact due,8 nor does it stop interest.9 Under a contract for a bond of indemnity, a tender made on condition of furnishing a lease for the realty in question, instead of such bond, is insufficient.10 It has been held that tender of the amount due on a note given for a conveyance of realty is insufficient where coupled with a demand for such conveyance.11 A tender of the amount due on a land contract has, however, been held sufficient, though accompanied by a request for a conveyance.12 If a contract for the sale of personalty does not contemplate a formal conveyance, a tender of the amount due under such contract is inoperative if the purchaser demands the delivery of a form of conveyance as a condition to the acceptance of such payment.13
7 See Sec. 2061 et seq.
8 Cave v. Osborne, 103 Mass. 482, 79 N. E. 794; Douglas v. Hustead, 216 Pa. St. 292, 65 Atl. 670.
1 Arkansas. Fields v. Danenhower, 65 Ark. 392, 43 L. R. A. 519, 46 S. W. 938.
California. Jones v. Shuey (Cal.), 40 Pac. 17.
Colorado. Butler v. Hinckley, 17 Colo. 523; Rude v. Levy, 43 Colo. 482, 24 L. R. A. (N.S.) 91, 96 Pac. 560.
Connecticut. Sanford v. Bulkley, 30 Conn. 344.
Illinois. Pulsifer v. Shepard, 36 111. 513.
Indiana. Rose v. Duncan, 49 Ind. 269.
Iowa. Sansone v. Crocker, - la. - , 170 N. W. 796.
Kansas'. Latham v. Hartford, 27 Kan. 249.
Massachusetts. Loring v. Cooke, 20 Mass. (3 Pick.) 48; Chapin v. Chapin, 161 Mass. 138, 36 N. E. 746.
Nebraska. Te Poel v. Shutt, 57 Neb. 692, 78 N. W. 288; Schrandt v. Young, 62 Neb. 254, 86 N. W. 1085; McEldon v. Patton (Neb.), 93 N. W. 938; Balrd v. Union Mutual Life Insurance Co., - Neb. - , 177 N. W. 156.
Ohio. Petersburg Fire Brick Co. v American Clay Machinery Co., 89 O. S 865, 106 N. E. 33.
South Dakota. Brace v. Doble, 3 S. D. 110, 52 N. W. 586; Pittsburgh Plate Glass Co. v. Leary, 25 S. D. 256, 31 L. R. A. (N.S.) 746, 126 N. W. 271.
Washington Vergonis v. Vaseleou, 105 Wash. 441, 178 Pac. 463.
Wisconsin. Elderkin v. Fellows, CO Wis. 339.
2 Minnesota. Moore v. Norman, 52 Minn. 83, 38 Am. St. Rep. 526, 18 L. R. A. 359, 53 N. W. 809.
Missouri. Ruppel v. Building Association, 158 Mo. 613, 59 S. W. 1000.
Nebraska. Tompkins v. Batie, 11 Neb. 147, 38 Am. Rep. 361, 7 N. W. 747.
New York. Noyes v. Wyckoff, 114 N. Y. 204, 21 N. E. 158. North Carolina. Rand v. Harris, 83 N. Car. 486.
Pennsylvania. Pershing v. Feinberg, 203 Pa. St. 144, 52 Atl. 22.
South Carolina. Doty v. Crawford, 39 S. Car. 1, 17 S. E. 377.
3 Richardson v. Chemical Laboratory, 50 Mass. (9 Met.) 42.
4 Rude v. Levy, 43 Colo. 482, 24 L. R. A. (N.S.) 91, 96 Pac. 560; Brown v. Gilmore, 8 Me. 107. 22 Am. Dec. 223: Loring v. Cooke, 20 Mass. (3 Pick.) 48; Baird v. Union Mutual Life Insurance Co., - Neb. - , 177 N. W. 156.
5 Beardsley v. Beardsley, 86 Fed. 16, 29 C. C. A. 538.
6 Greenhill v. Hunton (Tex. Civ App.), 69 S. W. 440
7 Petersburg Fire Brick Co. v. American Clay Machinery Co., 89 O. S. 365, 106 N E. 33.
8 Pittsburgh Plate Class Co. v. Leary, 25 S. D. 250, 31 L. R A. (N.S.) 746, 120 N. W. 271.
9 Pittsburgh Plate Class Co. v. Leary, 25 8. D. 250, 31 L. R. A. (N.S ) 740, 126 N. W. 271.
10 National Bank v. Levanseler, 115 Mich. 372, 73 N. W. 399.
11 Even under a statute allowing the debtor to demand a receipt. Do Graffenried v. Menard, 103 Ga. 651, 30 8. E. 560; Elder v. Johnson, 115 Ga. 691, 42 S. E. 51; Morris v. Continental Ins. Co., 116 Ga. 53, 42 S. E. 474.
12 Harding v Giddinga, 73 Fed. 335, 19 C. C. A. 508.
13 Vergonis v Vaseleou, 105 Wash. 441, 178 Pac. 463.
"The principal defense was that of tender. It is not necessary to recite the several acts of the appellant constituting the supposed tenders, but they were clearly insufficient. He seems to have conceived the idea that he was entitled to some form of absolute conveyance of the property as a condition precedent to the final payment, and all of the tenders made prior to the commencement of the action, conceding them to be sufficient in other respects, were made subject to such a condition. But the contract did not warrant this conclusion. The appellant was obligated to pay as the instalments matured, and the contract by its terms provided that his title to the property should become absolute on full payment. The contract neither provided for nor contemplated any additional evidence of title, and, conceding that the appellant may have been entitled to some form of cancellation of the contract from the fact that ft had been placed of record, this right would arise only after the purchase price was paid The obligation to pay and the obligation to cancel were not mutual, concurrent or dependant n Vergonis v. Vaseleou, 105 Wash. 441, 178 Pac. 463.
Even under a statute allowing the debtor to demand a receipt, he can demand a receipt only for the money paid in, and not a receipt in full.14 A demand for the surrender of collateral to secure payment of the debt in question, as well as other debts, prevents a tender from being effective.15 A tender by A of personalty claimed by B, reserving to A the right to recover its value if it should be held to belong to A, is insufficient.16 A tender of deeds and abstracts under a contract for the sale of realty is insufficient if coupled with a demand for a cash payment not required by the contract.17 The rejection of a valid conveyance tendered by the grantor and a demand for a conveyance of different form prevents a tender of the purchase price from being sufficient.18 Tender of the amount due with request for an assignment of the debt instead of payment is not sufficient.19 The debtor has a right, however, to use language showing that he does not admit that more is due. As long as he does not require the creditor to assent thereto as a condition of payment, the use of such language does not vitiate a tender. Thus tender by debtor of a sum "as a payment of the balance due on that mortgage," is sufficient if the amount is correct.20
If the condition which is attached to the tender calls for the performance of some specified act by the party to whom tender is made, and the rights of the party who made such conditional tender can not be protected by treating the adversary party as having accepted the offer, the party who received the amount thus tendered and refused to perform the conditions of the tender must restore it to the adversary party.21 If a tender is made on condition that a receipt be given in a prescribed form and that certain securities be returned, the party to whom such tender is made can not keep the amount thus tendered if he refuses to give such receipt and to surrender such securities.22
14 West v "Farmers' Mutual Ins. Co., 117 la 147. 90 N. W. 523.
15 SSchmittdiel v Moore, 101 Mich. 590, 60 N. W 279; Fidelity Loan & Trust Co. v. Engleby, 99 Va. 168, 37 8. E. 957.
See as apparently contra. Fourth National Bank v Stahltnan, 132 Tenn. 307. L R A 1916A, 568, 178 S. W. 942
16 Perkins v. Maier & Zubelein Brewery, 134 Cal. 372, 66 Pac. 482.
17 Breja v. Pryne, 94 Ta. 755, 64 N. W. 669.
18 Hyde v. Heller, 10 Wash. 586, 39 Pac 249.
19 Cochran v. Jackman (Ky.), 56 S. W 507; Whittaker v. Roller Mill Co., 55 N. J Eq. 674, 38 Atl. 289.
20 Davies v. Dow, 80 Minn. 223, 83 N W 50.
2I Bank v Mortgage Co., 104 Wash. 190, 175 Pac 950.
22 Bank v. Mortgage Co., 104 Wash. 190, 175 Pac 956.
While a tender to which arc added conditions which are not already imposed by law, is inoperative as a tender, it is ordinarily operative as an offer of compromise, accord and satisfaction, and the like; and if the party to whom such conditional tender is made accepts it with knowledge of such condition, he accepts the offer made therein.23 If the party to whom tender is made accepts it in full performance, he is ordinarily bound by such acceptance, and can not subsequently claim that full performance has not been made.24 If a certain sum is paid into court at the beginning of a suit as full tender, the creditor can not accept it and continue the suit for the rest of his cause of action, even if he protests that more is due when he accepts the money.25