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.
Tennessee. Rogers v. Tindall, 99 Tenn. 356, 42 S. W. 86.
Washington. Griesemer v. Mutual Life Ins. Co., 10 Wash. 202, 38 Pac. 1031; Weinberg v. Naher, 51 Wash. 591, 22 L. R. A. (N.S.) 956, 99 Pac. 736; McLeod v. Morrison, 66 Wash. 683, 38 L. R. A. (N.S.) 783, 120 Pac. 528; Huber v. Home Savings & Loan Association, 99 Wash. 593,169 Pac. 979.
West Virginia. Koon v. Snodgrass, 18 W. Va. 320.
Wisconsin. Wright v. Young, 6 Wis. 127, 70 Am. Dec. 453.
5 Hanna v. Ratekin, 43 111. 462. 6 Ashburn v. Poulter, 35 Conn. 553;
Baird v. Union Mutual Life Ins. Co., - Neb. - , 173 N. W. 686. 7 Sands v. Lyon, 18 Conn." 18.
8 Schayer v. Commonwealth Loan
Co., 163 Mass. 322, 39 N. E. 1110; Raines v. Jones, 23 Tcnn. (4 Humph.) 490.
9 Weinberg v. Naher, 51 Wash. 591, 22 L. R. A. (N.S.) 956, 99 Pac. 736.
10 Latimer v. Capay Valley Land Co., 137 Cal. 286, 70 Pac. 82.
11 Shank v. Groff, 45 W. Va. 543, 32 S. E. 248.
12 Poling v. Parsons, 38 W. Va. 80, 18 S. E. 379.
13 Bowden v. Dugan, 91 Me. 141, 39 Atl. 467.
14 Stewart v. Henry County, 66 Fed. 127.
15 Smith v. Old Dominion Building & Loan Association, 119 N. Car. 257, 26 S. E. 40.
16 Steckel v. Standley, 107 la. 694, 77 N. W. 489.
A refusal to accept, coupled with a demand for the production of the money, does not waive its production.17 A public officer is not such an agent of the party for whose benefit he may be required to act, that he has general authority to waive elements of tender. However, if the officer to whom by law tender should be made voluntarily accepts something which is not legal tender, such as a check,18 or a certificate of deposit,19 this is sufficient to keep the tender good. This is especially true where money has been tendered to the sheriff and he has requested that a check be given instead. Thus a mortgage debt was payable in gold coin. To redeem the property after sale tender of the proper amount of gold coin was made to the sheriff. He asked for a certified check instead. The coin was thereupon deposited in the bank, and a certified check obtained which was delivered to the sheriff. The check was not expressly made payable in gold coin, but when cashed by the sheriff it was in fact paid in gold. This was held to be a sufficient tender.20
The debtor must have been willing and able to make tender, and the refusal must have prevented a tender which he was about to make, to excuse the actual production of the money,21 as where the vendor under an executory contract of sale insisted that the contract was forfeited and conveyed to another.22
The custom of the creditor in permitting the debtor to make payments by check without objection operates as a waiver of objection to such form of tender, at least if the creditor has not notified the debtor in time, that he will not accept such medium of payment.23 If a mortgagee has permitted the mortgagor to pay interest by check, and if he has not notified the mortgagor that such method of payment will not be accepted, he can not treat a tender of the amount by check as insufficient so as to accelerate the maturity of the principal under a provision in the contract to that effect.24
17 Nicderhaiisor v. Detroit Citizens' Street By., 131 Mich. 530, 01 N. W. 102S.
18 Paid to sheriff. Hooker v. Burr, 137 Cal. 663, 70 Pac. 778. Paid to clerk of court. Jessup v. Carey, 61 Ind. 584. Paid to register of deeds. Carter v. Lewis, 27 Mich. 241.
19 Paid to the clerk. Steckel v. Standley, 107 Ia. 694, 77 N. W. 489.
Contra, a certificate of deposit payable to the order of the clerk was held not sufficient to keep a tender pood.
smith v. Bank, 14 Ohio C. C. 100, 8
Ohio C. D. 176.
20 Tlooker v. Burr, 137 Cal. 663, 70 Pac. 778.
21 MrCalley v Otey, 99 Ala 584, 42 Am. St. Rep. 87, 12 So. 406; Shank v. Groflf. 45 W. Va. 543, 32 S E 248.
22 McWhirtcr v. Crawford, 104 la, 550, 72 N. W. 505 [modified on rehearing 73 N. W 1021].
23 Gunby v. Ingram, 57 Wash. 97, 36 L. B. A. (N.S.) 232, 106 Pac. 405.
24 Cunby v. Ingram, 57 Wash. 07, 36 L. B. A. (N.S.) 232, 106 Pac. 405. (Check returned after foreclosure.)
The principle that the absolute refusal of the creditor to accept performance operates as a waiver of tender is not limited to debts payable in money. It applies to a refusal to accept a tender, of chattels, as a stock certificate.25 An offer to convey a patent right is sufficient tender where such offer is refused.26 If the purchaser refuses to accept a conveyance of realty, or to pay for the realty, such conduct waives tender of a deed.27 If a deed is not actually tendered by the vendor to the purchaser,28 as where the vendor notifies the purchaser that he has the deed in his pocket but does not actually produce it,29 the failure of the purchaser to demand the production of such deed does not operate as a waiver thereof if he does not declare his unwillingness or inability to perform the contract on performance by the vendor.
The conduct of the party to whom it is sought to make a tender in evading such tender or in making it impossible, operates as a breach of the covenants on his part to be performed;30 and it also operates as a waiver of the tender which he has prevented in this way.31 If the person to whom tender is to be made is to fix the time of delivery, his failure so to do operates as a waiver of tender.32 If the contract fixes the place at which delivery is to be made, the failure of the party to whom delivery is to be made to be present at such place at the time of delivery, either in person or by agent, operates as a waiver of tender.33 If a creditor renders a statement showing the amount which he demands, and by mistake he omits interest, a tender by the debtor in good faith in compliance with such statement is sufficient as a tender.34 The rendition of such statement does not, however, prevent the creditor from recovering the entire amount due, including the omitted items35
If the form of the objection to the tender is such as to prevent the creditor from objecting to its sufficiency in form, such objection does not waive the right of the creditor to treat it as insufficient if the amount is much less than the amount actually due.36
25 Williams v. Patrick, 177 Mars. 160, 58 N. E. 583.
26 Adams v. Tumor, 73 Conn. 38, 46 Atl. 247.
27 McWilliama v. Brookcns, 30 Wis. 334.
Refusal to rewind waives tender of all the property which has been received under the contract by the party who secks rcsciaaion. Puffer v. Badlcy, 92 Or. 360, 4 A. L. K. 1561, 181 Pac. 1.
28 Lefferts v. Dolton. 217 Pa. St. 299, 118 Am St. Rep. 913, 66 Atl. 527.
29 Lefferts v. Dolton. 217 Pa. St. 200, 118 Am. St. Rep. 913, 66 Atl. 527.
30 Loehr v. Dickson, 141 Wis. 332. 30 L. R. A. (N.S.) 405, 124 N. W. 293.
31 servel v. Jamieson, 255 Fed. 802; Rockland-Rockport Lime Co. v. Leary, 203 N. Y. 469, L. R. A. 1016F, 352, 07 N. E. 43.
32 Bell v. Hatfield, 121 Ky. 560, 2 L. R. A. (N.S.) 520, 80 S. W. 544.
33 Bell v. Hatfield, 121 Ky. 560, 2 L. R. A. (N.S.) 520, 89 S. W. 544.
34 Fourth National Bank v. Stahl-man, 132 Tenn. 367, L. R. A. 1016A, 568, 178 S. W. 942.
35 Fourth National Bank v. Stahl-man, 132 Tenn. 367, L. R. A. 1916A: 568, 178 S. W. 942.