contracts, pleadings. A tender is an offer to do or
perform an act which the party offering, is bound to perform to the party to
whom the offer is made.
2. A tender may be of money or of specific articles; these will be
separately considered. §1. Of the lender of money. To make la valid tender
the following requisites are necessary: 1. It must be made by a person capable
of paying: for if it be made by a stranger without the consent of the debtor,
it will be insufficient. Cro. Eliz. 48, 132; 2 M. & S. 86; Co. Lit.
3. - 2. It must be made to the creditor having capacity to receive it,
or to his authorized agent. 1 Camp. 477; Dougl. 632; 5 Taunt. 307; S. C. 1
Marsh. 55; 6 Esp. 95; 3 T. R. 683; 14 Serg. & Rawle, 307; 1 Nev. & M.
398; S. C. 28 E. C. L. R. 324; 4 B. & C. 29 S. C. 10 E. C. L. R. 272; 3 C.
& P. 453 S. C. 14 E. C. L. R. 386; 1 M. & W. 310; M. & M. 238; 1
Esp. R. 349 1 C. & P. 365
4. - 3. The whole sum due must be offered, in the lawful coin of the
United States, or foreign coin made current by law; 2 N. & M. 519; and the
offer must be unqualified by any circumstance whatever. 2 T. R. 305; 1 Campb.
131; 3 Campb. 70; 6 Taunt. 336; 3 Esp. C. 91; Stark. Ev. pt. 4, page 1392, n.
g; 4 Campb. 156; 2 Campb. 21; 1 M. & W. 310. But a tender in bank notes, if
not objected to on that account, will be good. 3 T. R. 554; 2 B. & P. 526;
1 Leigh~s N. P. c. 1, S. 20; 9 Pick. 539; see 2 Caines, 116; 13 Mass. 235; 4 N.
H. Rep. 296; 10 Wheat 333. But in such case, the amount tendered must be what
is due exactly, for a tender of a five dollar note, demanding change, would not
be a good tender of four dollars. 3 Campb. R. 70; 6 Taunt. R. 336; 2 Esp. R.
710; 2 D. & R. 305; S. C. 16 E. C. L. R. 87. And a tender was held good
when made by a check contained in a letter, requesting a receipt in return
which the plaintiff sent back demanding a larger sum, without objecting to the
nature of the tender. 8 D. P. C. 442. When stock is to be tendered, everything
must be done by the debtor to enable him to transfer it, but it is not
absolutely requisite that it should be transferred. Str. 504, 533, 579 .
5. - 4. If a term had been stipulated in favor of a creditor, it must be
expired; the offer should be made at the time agreed upon for the performance
of the contract if made afterwards, it only goes in mitigation of damages,
provided it be made before suit brought. 7 Taunt. 487; 8 East, R. 168; 5 Taunt.
240; 1 Saund. 33 a, note 2. The tender ought to be made before day-light is
entirely gone. 7 Greenl. 31.
6. - 5. The condition on which the debt was contracted must be
7. - 6. The tender must be made at the place agreed upon for the
payment, or, if there be no place appointed for that purpose, then to the
creditor or his authorized agent. 8 John. 474; Lit. Sel. Cas. 132; Bac. Ab. h.
8. When a tender has been properly made, it is a complete defence to the
action but the benefit of a tender is lost, if the creditor afterwards demand
the thing due from the debtor, and the latter refuse to pay it. Kirby, 293.
9. - §2. Of the tender of specific articles. It is a rule that
specific articles maybe tendered at some particular place, and not, like money,
to the person of the creditor wherever found. When no place is expressly
mentioned in the contract, the place of delivery is to be ascertained by the
intent of the parties, to be collected from the nature of the case and its
circumstances. If, for example, the contract is for delivery of goods from the
seller to the buyer on demand, the former being the manufacturer of the goods
or a dealer in them, no place being particularly named, the manufactory or
store of the seller will be considered as the place intended, and a tender
there will be sufficient. When the specific articles are at another place at
the time of sale, that will be the place of delivery. 2 Greenl. Ev. §609 4
Wend. 377; 2 Applet. 325.
10. When the goods are cumbrous, and the place of delivery is not
designated, nor to be inferred from the circumstances, it is presumed that it
was intended that they should be delivered at any place which the creditor
might reasonably appoint; if the creditor refuses, or names an unreasonable
place, the debtor may select a proper place, and having given notice to the
creditor, deliver the goods there. 2 Kent, Comm. 507; 1 Greenl. 120; Chip. on
Contr. 51 13 Wend. 95; 2 Greenl. Ev. §610. Vide, generally, 20 Vin., Ab.
177; Bac. Ab. h. t.; 1 Sell. 314; Com. Dig. Action upon the case upon
Assumpsit, H 8-Condition, L 4 Pleader, 2 G 2-2 W, 28,49-3 K 23-3 M 36; Chipm,
on Contr. 31, 74; Ayl. Pand. B. 4, t. 29; 7 Greenl. 31 Bouv. Inst. Index, h.
Source: Bouviers Law Dictionary 1856 Edition