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.
After tender is duly made it must, to preserve its legal effect, be kept good;1 that is, the person making the tender must keep enough money on hand after the date of the tender to make the payment if called upon,2 and he must not make profit of it.3 It is not necessary, however, that the identical money tendered should be kept on hand continuously.4 Under the practice in force in most jurisdictions tender must be pleaded as a defense,5 and the money paid into court6 if it is desired to save interest and costs. A provision of the court of civil procedure requiring money to be paid into the clerk of court is held to apply to an action before a justice of the peace and to require a tender to be kept good by a payment to him.7 Hence, a pleading of tender that does not allege a continuing offer and a payment into court is insufficient.8 If the amount which is tendered is placed in the hands of a master who makes a finding that the tender is good but returns the money to the mortgagor instead of paying it over to the court, and the mortgagor accepts such payment, the tender is not kept good.9 If the pleading which is filed by the plaintiff alleges tender and the defendant attacks such pleading by a general demurrer, it is not necessary that he shall keep the tender good or pay it into court as a condition precedent to his right to insist upon such demurrer.10
1 United States. Caesar v. Capell, S3 Fed. 403.
Alabama. Hodges v. Verner, 100 Ala. 612, 13 So. 670.
Illinois. Wenegar v. Bollenbach, 180 III 222, 54 N. E. 192.
Indiana. Bowen v. Gerhold, 32 Ind. App. 614, 102 Am. St. Rep. 257, 70 N. E. 546.
Iowa, Crawford v. Liddle, 101 la. 148, 70 N. W. 97.
Massachusetts. Lefevre v. Chamberlain, 228 Mass. 294, 117 N. E. 327.
Missouri. Jopling v. Walton, 138 Mo. 485, 40 S. W. 99.
New York. Zebley v. Farmers' Loan & Trust Co.. 139 N. Y. 461, 34 N. E. 1067; Callanan v. Keeseville, Ausable Chasm & Lake Cham plain Ry., 199 N. Y. 268, [sub nomine, Callanan v. Powers, 92 N. E. 747].
Oregon. Owen v. Jones, 68 Or. 311, 136 Pac. 332.
2 Hall v. Baldwin Bank, 143 Wis. 303, 127 N. W. 969.
3 Gribben v. Maxwell, 34 Kan. 8, 55 Am. Rep. 233, 7 Pac. 584; Fournier v. Clutton, 146 Mich. 298, 117 Am. St. Rep. 638, 7 L. R. A. (N.S.) 179, 109
N. W. 425; Sherbloom v. Faussett, 99 Wash. 680, 170 Pac. 337.
See also, Loff v. Gibbert, - N. D. - , 166 N. W. 810.
4 Commercial Bank v. Crenshaw, 103 Ala. 497, 15 So. 741; West v. Farmers' Mutual Ins. Co., 117 la. 147, 90 N. W. 523; Barron v. Thompson, - S. Car. - , 97 S. E. 840.
1 Dunn v. Hunt, 63 Minn. 484, 65 N. W. 948; Gauche v. Milbratb, 94 Wis. 674, 69 N. W. 999; Weigell v. Gregg, 161 Wis. 413, L. R A. 1916B, 856, 154 N. W. 645.
2 Beardslcy v. Beardsley, 86 Fed. 16, 29 C. C. A. 538; Thayer v. Meeker, 86 111. 470; Slack v. Price, 4 Ky. (1 Bibb.) 272.
"The note being due on demand waa payable as soon as issued, but it waa not until January 8, 1914, that defendants had to their credit, in the Bridger bank, funds sufficient to meet it. Thereafter from April 15th to June 20th, from July 30th to September 8th, and from September 28th to December 23d, in 1914, this balance was not sufficient. In otner words, they did not keep money on deposit to meet this note, but increased or diminished their deposit as the exigencies of their business permitted or required. They can not select a particular date upon which their balance was sufficient and insist that the note matured at that particular time." United States National Bank v. Shupak, 54 Mont. 542,172 Pac. 324.
3 Middle States Loan, Building & Construction Co. v. Hagerstown Mattress Upholstery Co., 82 Md. 506, 33 Atl. 886; Sanders v. Bryer, 152 Mass. 141, 9LR.1 255, 25 N. E. 86.
4 Cheney v. Bilby, 74 Fed. 52, 20 C. C. A. 291; Thompson v. Lyon, 40 W. Va. 87, 20 S. E. 812.
5 National Machine & Tool Co. v. Standard Shoe Machinery Co., 181 Mass. 275, 63 N. E. 900.
6 Iowa. Deacon v. Central Iowa Investment Co., 95 la. 180, 63 N. W. 673.
Michigan. Grand Rapids v. Kra-kowski, - Mich. - , 174 N. W. 201.
Nebraska. Clark v. Neumann, 56 Neb. 374. 76 N. W. 802.
New Hampshire. Felker v. Hazel-ton, 68 N. H. 303. 38 Atl. 1051.
Ohio. Bahmann v. Stone, 59 O. S. 497, 52 N. E. 1022.
West Virginia. Shank v. Groff, 45 W. Va. 543, 32 S. E. 248.
Wisconsin. Weigell v. Gregg, 161 Wis. 413, L. R. A. 1916B, 856, 154 N. W. 645.
"The tender after action was brought was insufficient because not made to the respondent nor any one representing the respondent. The money was left with a third person to be handed the respondent's attorney, and aside from the fact that the evidence fails to show that it was never tendered him, even informally, the act itself was not a compliance with the formal rules of tender. But more than this, the money tendered was not brought into court. It is true that we have held in actions of equitable cognizance, where the plaintiff must rely upon equitable principles to sustain his cause of action, that it is sufficient to plead willingness to pay without an actual bringing of the money into court. But the present action is a legal action, to which the plea of ten-der is a legal defense, and the rule cited re without application." Vergonis v. VaBeleou, 105 Wash. 441, 178 Pae. 463.
"On December 10, 1913, the defendants tendered plaintiff the sum of $1,546.16, the amount then due on the note. He refused to receive it, claiming $3,000 more, with interest, waa due. The defendants failed to pay the amount into court as required by circuit court rule 15 (108 N. W. xii), and the court properly found that their tender was not kept good. The cases of Kreutzer v. Lynch, 122 Wis. 474, 100 N. W. 887, and Inglis v. Fohey, 136 Wis. 28, 116 N. W. 857, relied upon by defendants, to the effect that plaintiff waived the tender by refusing to accept the money, do not apply to a case like the one at bar, where the dispute is as to the amount due. The cases mentioned are where the party to whom the tender was made repudiated in toto the contract relied upon by the party making the tender/' Weigell v. Gregg, 161 Wis. 413, L. R. A. 1916B, 856, 154 N. W. 645.
Under the specific provisions of some statutes, the money or thing which is tendered must be deposited in conformity to the terms of the statute in order to keep the tender good.11 Since tender is not payment or performance, a purchaser must keep his tender good if he wishes to treat such tender as performance so as to acquire title to goods which he has purchased at the purchase price which he has thus tendered.12
If a tender of freight has been made to a carrier and it refuses to deliver the goods, the carrier can not defeat an action in replevin for failure to keep such tender good if it has come to trial without insisting that such tender should be kept good,13 at least if the costs are imposed upon the party who failed to keep such tender good.14 the mortgagor should pay the money into court16 It is sufficient if in his pleading he offers to pay the amount found due.17 In some jurisdictions payment, into court, while necessary to discharge a mortgage securing the debt, is not necessary to stop interest and costs.18
In an action to recover mortgaged property it is said that the mortgagor need not keep his tender good nor pay the money into court.15 In a suit to redeem it is said that it is not necessary that
7 Bahmann v. Stoner, 59 0. S. 407, 62 N. E. 1022.
Under such provisions the party who has made a tender may keep it good by paying the money into court without special leave of court, at least at any time before the plea is filed. Grand Rapids v. Krakowski, - Mich. - , 174 N. W. 201.
8 Terrell Coal Co. v. Lacey (Ala.), 31 So. 109.
9 Barron v. Thompson, - S. Car. - , 97 S. E. 840.
10 Davis v. Isenstein, 257 111. 260, 46 L. R. A. (N.S.) 52, 100 N. E. 940.
1 1 Brown v. Smith, 13 N. D. 580, 102 N. W. 171.
12 Silver v. Moore, 109 Me. 505, 84 Atl. 1072.
13 Cleveland, Cincinnati, Chicago & St. Louis Ry. v. Anderson Tool Co., 180 Ind. 453, 49 L. R. A. (N.S.) 749, 103 N. E. 102.
1 4 Cleveland, Cincinnati, Chicago & St. Louis Ry. v. Anderson Tool Co., 180 Ind. 453, 49 L. R. A. (N.S.) 749, 103 N. E. 102.
15 Flanders v. Chamberlain, 24 Mich. 306; Moore v. Norman, 43 Minn. 428, 19 Am. St. Rep. 247, 9 L. R. A. 55, 45 N. W. 857; Thomas v. Seattle Brewing & Malting Co., 48 Wash. 560, 15 L. R A. (N.S.) 1164, 94 Pac. 116.
If a tender is a condition precedent to a right to bring an action of replevin, it is said to be sufficient if such a tender is kept good by payment into court after the complaint was filed but before summons was served,19
If an offer is to be accepted by making a promise, and not by the payment of money, irregularities in keeping a tender good do not defeat the effect of an acceptance in due form.20