§ 1403. In the next place, as to Tender. A tender of money, in satisfaction of a debt, if made before the issuing of the writ, is a defence to costs of suit and damages,1 and interest upon the debt accruing after tender; but it is no defence to the debt itself.2 It may be made upon a claim for a quantum meruit,3 but not, at common law, upon a claim for damages upon an unperformed contract;4 nor in an action on the case, nor where the damages are uncertain.5
1 A tender of the amount of a debt without costs is insufficient, after a writ has been sued out thereon, and sent to an officer for although not yet actually delivered to him. Emerson v. White, 10 Gray, 351 (1S5S). See Ashburn p. Poulter, 35 Conn. Ml Under the laws of Connecticut a tender may be made after action brought and before entry with the same effect as before the commencement of the suit, but the tender must include the cost of the writ, but not of service unless a service has actually been made. Call p. Lothrop, 39 Me. 434 (1855).
2 Bac. Abr. Tender; Waistell p. Atkinson, 3 Bing. 290; s. c. 11 Moore, 14: Law p. Jackson, 9 Cow. 641; Coit v. Houston, 3 Johns. Cas. 243; Carley p. Vance, 17 Mass. 389; Suffolk Bank v. Worcester Bank, 5 Pick. 106; Fuller p. Pelton, 16 Ohio, 457; Cornell p. Green, 10 Serg. & Rawle. 14; Briggs v. Calverly, 8 T. R. 629; Moffat p. Parsons, 5 Taunt. 307; Dixon v. Clark, 5 C. B. 365. And a tender is held to be an admission that the amount thereof is due, and a jury cannot award less. Sweet-land v. Tuthill, 54 I11 215 (1870). But see Clarke v. Lyon Co., 7 Nev. 75 (1S71).
3 Johnson p. Lancaster, 1 Str. 576; Cox p. Brain, 3 Taunt. 95.
4 Dearie p. Barrett, 2 Ad. & El. 82; 4 Nev. & M. 200; 3 DowL P. C. 13; Green p. Shurtliff, 19 Vt. 592.
5 Bacon, Abr. Tender, P. 8, 9; Bennett p. Francis, 2 Bos. & Pul 550; Dixon p. Clark, 5 C. B. 365; Waistell v. Atkinson, 3 Bing. 290; Law v. Jackson, 9 Cow. 641; Coit v. Houston, 3 Johns. Cas. 243; Raymond v. Bearnard, 12 Johns. 274; Huntington v. American Bank, 6 Pick. 340.
§ 1404. A tender need not be made by the debtor personally; a tender by any person in his behalf being sufficient, if it be subsequently assented to by him.1 So, also, a tender need not be made to the creditor personally, but it may be made to any authorized agent,2 or to any person he holds out as competent to receive for him; as to a clerk in a store,3 or to the attorney of a creditor who has left his claim for collection.4 And if the creditor designedly absents himself from home, for the fraudulent purpose of avoiding a tender, he cannot object that no tender was made to him personally.5 If there be several joint creditors, a tender to one of them is sufficient,6 but it must be pleaded to be to all.7
§ 1405. The debtor must tender the whole amount of the debt to his creditor, and a tender of a part of it only is void, because the creditor is not bound to accept a part;8 and this is specially the case where the tender is of a part of a sum due under an entire contract.9 But if there be several distinct sums of money, he may tender one of the sums, declaring that the tender is made for that sum.1 So, also, a tender of one gross sum to several creditors, all being present when the tender is made, is sufficient to cover all their claims, and which they refuse on the ground of its being inadequate, is a good tender.2 But if a gross sum be tendered to one creditor by several debtors to cover all their debts, it is not a good tender for each.3 A tender of a gross sum upon several demands by the same debtor is good, without specifying the amount tendered on each.4
In New York and in Massachusetts, tender is allowed in cases of involuntary trespass. 2 New York Revised Stat. 553, § 20, 22; Slack v. Brown, 13 Wend. 390; Gen. Stat. Mass. 1860, ch. 138, § 11.
1 Cropp v. Hambleton, Cro. Eliz. 48; Bac. Abr. Tender, A.; Read v. Goldring, 2M. & S. 86; Watkina v. Ashwicke, Cro. Eliz. 132; Harding v. Davies, 2 C. & P. 78.
2 Goodland v. Blewith, 1 Camp. 477; Moffat v. Parsons, 5 Taunt. 307; Anon., 1 Esp. 349; Wilmot v. Smith, 3 C. & P. 453; Mood. & Malk. 238; Hoyt v. Byrnes, 2 Fairf. 475; Watson v. Hetherington, 1 C. & K. 36; Kirton v. Braithwaite, 1 M. & W. 310; Smith v. Goodwin, 4'B. & Ad. 413; Billiot v. Robinson, 13 La. An. 529.
3 Hoyt v. Byrnes, 2 Fairf. 475; Moffat v. Parsons, 5 Taunt. 307.
4 Tender to an attorney is good, although he then untruly denies his authority. Mclniffe v. Wheelock, 1 Gray, 600. See, also, Watson v. Hetherington, 1 C. & K. 36; Crozer v. Pilling, 4 B. & C. 28; Kirton v. Braithwaite, 1 M. & W. 313.
5 Southworth v. Smith, 7 Cush. 391.
6 Douglas v. Patrick, 3 T. R. 683; Oatman v. Walker, 33 Me. 67.
7 Douglas v. Patrick, 3 T. R. 683.
8 Boyden v. Moore, 5 Mass. 365; Dixon v. Clark, 5 C. B. 305. He need not tender for an attorney's letter. Kirton v. Braithwaite, 1 M. & W. 313. And see Holman v. Stevens, 33 Law Times, 118; 6 C. B (n. s.) 932, Am. ed.; 6 Jur. (n. s.) 124.
9 Dixon v. Clarke, 5 C. B. 365.
§ 1406. So, also, the tender must be absolute;5 and if it be coupled with a condition, as if the creditor will give a receipt or a release in full,6 or if it be offered as a present, with a denial that it is justly due,7 or if it be offered in full of all demands,8 or, indeed, if any other terms not embraced by the contract be added which the acceptance of the money would cause the other party to admit,1 the tender would not be good. If the obligation be to give one of two things in the alternative, at the option of the obligee, the tender should be of both.2 If a tender be made of a greater amount than that which is due, it will not be considered good unless it appear that the sum offered could be changed by the other party so as to render it equivalent to the debt.3 But a tender with a demand that the other party shall perform a duty imposed upon him by law would be good;4 and so, also, is a tender under protest.6 But the question whether a tender be