3 Douglas v. Patrick, 3 T. R. 683; Leatherdale v. Sweepstone, 3 C. & P. 342; Dickinson v. Shee, 4 Esp. 68; Dunham v. Jackson, 6 Wend. 22; Read v. Goldring, 2 M. & S. 86; Strong v. Blake, 46 Barb. 227.
4 Per Vaughan, J., Finch v. Brook, 1 Bing. N. C. 253.
5 Dunham v. Jackson, 6 Wend. 22. But probably the better rule is that the actual production of the money is not necessary, if the defendant refuses to receive it. 2 Greenl. Ev. § 603; Hazard v. Loring, 10 Cush. 267 (1852); Thome v. Mosher, 20 N. J. Eq. 257 (1869); Rudulph v. Wagner, 36 Ala. 698; Stone v. Sprague, 20 Barb. 509. In Dunham v. Jackson, supra, the offer was merely to draw a check for the amount. A tender of money which the person to whom it is tendered refuses to accept, but, upon its being left with him against his wish, afterwards refuses to give up, is sufficient. Rogers v. Rutter, 11 Gray, 410 (1858).
6 Ibid. In Harding v. Davies, 2 C. & P. 77, Best, C. J., says: " It would not do if a man said, I have got the money, but must go a mile and fetch it." Breed v. Hurd, 6 Pick. 356; Brown v. Gilmore, 8 Greenl.
§ 1408. By the early acts of Congress, the only strictly legal tender was coined money, but by the acts of 1862 and 1863 certain treasury notes of the United States were made a legal tender in payment of debts between private persons. These acts have been held constitutional and valid, not only as to debts contracted after their passage, but also to those entered into before that event, and when coined money was the only legal tender.5 But these acts do not apply to a
107; Fuller v. Little, 7 N. H. 535; Sargent v. Graham, 5 Ib. 440; Wheeler v. Knaggs, 8 Ohio, 169; Bakeman v. Pooler, 15 Wend. 637.
1 Finch v. Brook, 1 Bing. N. C. 257. Where upon a contract to deliver certain shares of stock "at seller's option, sixty days," the purchaser makes his demand for the stock at the proper time and in the proper form, is then ready to pay the price,and is refused the delivery on the ground that the seller was not able to make it, it is not necessary to the former's right of action for the breach that he should have made an actual offer or tender of the money. Wheeler v. Garcia, 40 N. Y. 584 (1869).
2 Ward v. Smith, 7 Wall. 447 (1868). A tender in Confederate money has been held bad, though circulating as currency at the time. Graves v. Hardesty, 19 La. An. 186.
3 See Jennings v. Mendenhall, 7 Ohio State, 257, whether mere silence is sufficient.
4 Bank of United States v. Bank of Georgia, 10 Wheat. 334; Thorn-dike v. United States, 2 Mason, 1; Snow v. Perry, 9 Pick. 542; Polglass v. Oliver, 2 C. & J. 15; Jones v. Arthur, 8 Dowl. 442; Betterbee v. Davis, 3 Camp. 70; Warren v. Mains, 7 Johns. 476; Wheeler v. Knaggs, 8 Ohio, 172; Towson v. Havre de Grace Bank, 6 Har. & Johns. 53; Brown v. Simons, 41 N. H. 475; Cummings v. Putnam, 19 Id. 569.
5 The authorities are nearly uniform as to the validity of these acts, when applied to debts contracted after their passage; but there has been some diversity of opinion whether debts contracted before their enactment could be discharged by such treasury notes. It is not now finally settled that they can. See Knox v. Lee; Parker v. Davis, 12 Wall. 457 contract which by its terms clearly implies that the payment should be made in gold or silver, or coined money; and a tender of such notes on such a contract is not a valid tender.1 Neither do they apply to taxes imposed by State authority.2
§ 1409. The plea of a tender should be that the debtor is, and always has been, ready to pay, from the time the money was payable. If, therefore, it be specially pleaded that, either before or after tender, there was a demand by the creditor and a refusal by the debtor, the tender will be of no avail as a defence.3 But it is not necessary to prove, under a plea of tender, that the identical money tendered was kept and brought into court.4
§ 1410. Where the tender is not of money, but of specific articles, it is not sufficient ordinarily to tender them to the person of the creditor wherever he may be, but they must be tendered at a proper place.5 Where there is an express agreement as to the place where the goods shall be delivered, they must be offered at such place.6 Where there is no agreement as to place, the question where they should be tendered depends on the circumstances of the case, the nature of the contract, and of the articles. In cases of sale, if no place of delivery be appointed, a tender of the goods at the place where they are sold is sufficient;1 but if they be mixed up with other similar goods, they should be set aside and marked so that there may be no doubt as to their exact identity.2 Where the agreement is to pay a debt by the delivery of specific articles at a time certain, no place being fixed, the tender of such articles should, in the absence of circumstances indicating the contrary, be at the residence or place of business of the creditor, if they be portable.3 But if they be cumbrous, and no place is appointed or is to be inferred from the nature of the contract or the circumstances of the case, the creditor may appoint a reasonable place of delivery; and if he refuse or neglect to do so upon request of the debtor, a tender by the debtor at any reasonable and proper place will be sufficient.4 But if the contract be to pay a note or debt of any kind on demand, or if no time or place be fixed, they are deliverable at the place where they are,5 on a demand.
(1870), overruling Hepburn v. Griswold, 8 Wall. 603, on this point. See, also, O'Neil v. McKewn, 1 So. Car. 147 (1869); Verges v. Gibo-ney, 38 Mo. 458; The Metropolitan Bank v. Van Dyck, 27 N. Y. 400 (1863); Belloc v. Davis, 38 Cal. 242; George v. Concord, 45 N. H. 434; Van Husan v. Kanouse, 13 Mich. 303.
1 See Bronson v. Rodes, 7 Wall. 229; Butler v. Horwitz, 7 Wall. 258; Independent Ins. Co. v. Thomas, 104 Mass. 192; Trebilcock v. Wilson, 12 Wall. 687; Dewing v. Sears, 11 Wall. 379; Wilson v. Triblecock, 23 Iowa, 331; Rankin v. Demott, 61 Penn. St. 263; Frank p. Colhoun, 59 Id. 381; Vilhac v. Biven, 28 Cal. 410. Although there are decisions apparently holding that a contract payable in gold is satisfied by a tender of the same amount of legal-tender notes. See Shollenberger v. Brinton, 52 Penn. St. 9; Dutton v. Pailaret, Id. 109; Murray v. Harrison, 47 Barb. 484; Appel v. Woltmann, 38 Mo. 194; Jones v. Smith, 48 Barb. 552; Wilson v. Morgan, 4 Rob. (N. Y.) 58.