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.
Refusal of tender based on a specific ground of objection,1 such as the insufficiency of the amount tendered,2 or on the ground that the contract has already been discharged by an alleged breach,3 operates as a waiver of other grounds of objection, at least if such other objections could be remedied by the debtor if his attention had been called thereto. A denial of the existence of the contract is said not to waive tender.4
Specific objection on some other designated ground waives objection to the medium in which the tender is made,5 as that it is made in bank notes which are not legal tender,6 or partly in silver certificates which were not legal tender,7 or that it is made by check,8 or was made a day or so before maturity.9 A refusal to accept a tender made at a place different from that fixed by the contract as the place of payment waives objection to the place if not on that ground.10 A refusal of tender on the ground that the amount is too small, waives the objection that the amount tendered was too large and that change was demanded.11 Slight deficiencies in the amount tendered may be waived by a refusal based upon some other specified ground. So a refusal to accept a tender unless another claim should be paid, waives the objection that interest is not included.12 So tender of water rental which does not include a lawful "carriage fee," but which is refused on the sole ground that an alleged royalty to which the creditor had no legal right is not included, is sufficient.13 But under a statute making failure to make an "objection to money" a waiver of such objection, objection to the amount is not waived, the statute being held to refer to the kind of money.14 By statute, failure to make objections at the time of tender waives all that the creditor then had an opportunity to make. This includes objection to the amount as insufficient,15 or that the debtor in making tender demanded that the creditor execute an instrument which he was not bound to execute,16 but not to such a deficiency as an offer of ten dollars on a claim of twenty thousand dollars.17 The uncommunicated intention of the creditor to refuse tender is not an excuse for omitting to make actual tender.18 Tender as a condition precedent to maintaining an action may be waived by an answer denying liability on a distinct ground.19
35 Bradford v. Fidelity Sayings & Loan Society, 177 Cal. 247, 170 Pae. 404. (Ninety thousand dollars tender, even if sufficient, for sixty thousand dollars only.)
1 England. Black v. Smith, Pcake Nisi Prisi Cases 89; Cadman v. Lubbock, 5 Dow. & Ryl. 289.
Illinois. Thayer v. Meeker, 86 111. 470.
Missouri. Whelan v. Reilley, 61 Mo. 565.
Nebraska. Ricketts v. Buckstaff, 64 Neb. 851, 90 N. W. 915
Ohio. Jennings v. Mendenhall, 7 O. S. 257.
West Virginia. Koon v. Snodgrass, 18 W. Va. 320.
Wyoming. Wright v. Douglas, - Wyom. - , 183 Pac. 786.
2 Pearson's Estate, 102 Cal. 569, 36 Pac. 934.
3 McGrath v. Gegner, 77 Md. 331, 39 Am. St. Rep. 415, 26 Atl. 502; Stanley v. Pilker, 40 S. D. 403, 167 N. W. 393.
4Mowry v. Kirk, 19 O S. 375.
5 Wheeler v. Knaggs, 8 Ohio 169; Wright v. Douglas, - Wyom. - , 183 Pac. 786.
6 Fosdick v. Van Husan, 21 Mich. 567; Lacy v. Wilson, 24 Mich. 479;
Beebe v. Knapp, 28 Mich. 53; Koehler v. Buhl, 94 Mich. 469, 54 N. W. 157; Wheeler v. Knaggs, 8 Ohio 169. (Express waiver.)
7 Ritchie v. Ege, 58 Minn. 291, 59 N. W. 1020.
8 Illinois. Sloan v. Petrie, 16 111. 262.
Maryland. McGrath v. Gegner, 77 Md. 331. 39 Am. St. Hep. 415, 26 Atl. 502; Bonaparte v. Thayer, 95 Md. 548, 52 Atl. 496.
Missouri Henderson v. Bass County, 107 Mo. 50, 18 S. W. 992.
New York. Mitchell v. Mining Co., 67 N. Y. 280.
Ohio. Jennings v. Mendenhall, 7 O. S. 257.
Pennsylvania. Pershing v. Feinberg, 203 Pa. St. 144, 52 Atl. 22.
So with a certified check. Beckham v. Puckctt, 88 Mo. App. 636. Or an order. Hall v. Appell, 67 Conn. 585, 35 Atl. 524; Jennings v. Mendenhall, 7 O. S. 257. (Express waiver of fact that payment was not in legal tender; doubt expressed as to whether silence would amount to a waiver.)
9 Thompson v. Lyon, 40 W. Va. 87, 20 S. E. 812.