demands, or even a receipt for the money tendered," invalidates a tender. Objection by the creditor on this ground, however, must be made at the time in order to be effective.93 Moreover a debtor may, when making an absolute tender, protest that the amount claimed by the creditor and tendered by himself is excessive and thereby reserve a right to sue to recover a portion of what he tenders.94

§ 1815. Conditional tender of secured debt.

So strict is the rule that a tender must be absolute that it has been said that a tender accompanied with a demand for collateral securities pledged for the debt is insufficient; 95 and that a tender by a mortgagor must not impose even the condition that the mortgage be discharged of record; 96 and even that demand for the surrender of a negotiable instrument in

1

validates a tender of money for its payment.97 But such few decisions as may warrant these conclusions seem unreasonable, though in all these instances the creditor could maintain an action without alleging or proving a prior conditional offer on his part.98 Enforcement by the creditor of a judgment, however, should not be allowed if he refuses or fails to perform an act obviously necessary to reinstate the debtor in complete security. Accordingly the sound principle is that a tender conditional on the return of collateral security,99 or on the execution of the discharge of a mortgage 1 is sufficient; and in the case of negotiable paper, not only a party to the instrument who requires it for the enforcement of a right against a prior party in order to recover what he himself has paid, as an acceptor,2 or an indorser,3 may require the surrender of the instrument contemporaneously with payment, but clearly also the maker of a demand note must be justified in imposing the condition of its surrender unless so long a time has elapsed since the making of the note as to preclude the subsequent transfer to a holder in due course; and even in such a case, or in the case of the party primarily liable on time paper already due, clearly the debtor has the right to be assured that the creditor has not previously transferred the instrument. To make sure of this it is necessary to impose at least the condition that the instrument be produced, and undoubtedly mercantile custom warrants the rule that in every case an obligor on negotiable paper to return collateral justifies nonpayment of a note.

97 Baker v. Wheaton, 5 Mass. 509, 512, 4 Am. Dec. 71; Fales v. Russell, 16 Pick. 315; Holton v. Brown, 18 Vt. 224, 46 Am. Dec. 148.

98 See supra, § 835.

99 Berry v. Bank of Bakersfield (Cal.), 170 Pac. 415; Cass v. Higenbotam, 100 N. Y. 248, 3 N. E. 189; First Nat. Bank v. Gidden, 175 N. Y. App. D. 563, 566, 162 N. Y. S. 317. Cf. Robertson v. Sully, 2 N. Y. App. D. 152, 37 N. Y. S. 935. See also Ocean Nat. Bank v. Fant, 50 N. Y. 474, holding a demand on the maker unaccompanied by a conditional tender of collateral security insufficient to charge an indorser; Schlesinger v. Wise, 106 N. Y. App. D. 587, 94 N. Y. S. 718, holding a refusal

1 Storey v. Krewson, 55 Ind. 397, 23 Am. Rep. 668; Halpin v. Phenix Ins. Co., 118 N. Y. 165, 23 N. E. 482; Wheelock v. Tanner, 39 N. Y. 481. See also Saunders v. Frost, 5 Pick. 259, 16 Am. Dec. 394; Salinas v. Ellis, 26 S. Car. 337, 2 S. E. 121. A debtor who demands a release of his mortgage should, however, tender the release for execution. Pettengill v. Mather, 16 Abb. Pr. 399. See also Laing v. Meader, 1 C. & P. 257.

90.

2 Hansard v. Robinson, 7 B. & C.

3 Osterman v. Goldstein, 32 N. Y. Misc. 676, 66 N. Y. S. 506.

is entitled to surrender of the instrument contemporaneously with payment. If so, he should be allowed to impose the condition of surrender on his tender, without making it ineffectual; and the law supports the custom.4

§ 1816. Tender must be kept good.

Where a tender does not discharge the debtor's obligation he must keep the tender good in order that it shall be effectual to bar damages for delayed performance, that is, he must continue ready and willing and able to carry out the tender, and must not thereafter use the money or property tendered for his own profit; 5 and a right to damages on account of non-payment of a debt or non-performance of a duty after being taken away by a tender may, by a subsequent demand and refusal, be restored from the time of such demand. If, however, a lien or mortgage has once been discharged by a valid tender it is not revived by failure to keep the tender good."

4 Hansard v. Robinson, 7 B. & C. 90; Dozier v. Vizard Inv. Co. (Ala.), 83 So. 572; Storey v. Krewson, 55 Ind. 397, 400, 23 Am. Rep. 668; Heywood v. Hartshorn, 55 N. H. 476; Strafford v. Welch, 59 N. H. 46; Bailey v. Buchanan County, 115 N. Y. 297, 22 N. E. 155, 6 L. R. A. 562; Halpin v. Phenix Ins. Co., 118 N. Y. 165, 23 N. E. 482. Otherwise of a non-negotiable note. Storey v. Krewson, 55 Ind. 397, 23 Am. Rep. 668. There is no doubt that a valid demand of payment by the holder of a negotiable instrument, whenever demand is necessary cannot be made without production of the instrument and an offer to surrender it on receipt of payment. Ocean Nat. Bank v. Fant, 50 N. Y. 474, 476. See Uniform Neg. Inst. Law, Sec. 74, supra, 1166.

5

Gyles v. Hall, 2 Peere Wms. 378; Bissell v. Heyward, 96 U. S. 580, 24 L. Ed. 678; Odum v. Rutledge, etc., R. Co., 94 Ala. 488, 10 So. 222; Abbott v. Herron, 90 Ark. 206, 118 S. W. 708; Burlock v. Cross, 16 Col. 162, 26 Pac.

142; Matthews v. Lindsay, 20 Fla. 962; Fortson v. Strickland (Ga. App.), 99 S. E. 147; Rankin v. Rankin, 216 III. 132, 74 N. E. 763; Wilson v. McVey, 83 Ind. 108; Saum v. LaShell, 45 Kans. 205, 25 Pac. 561; McPheters v. Kimball, 99 Me. 505, 59 Atl. 853; Maulsby v. Page, 105 Md. 24, 65 Atl. 818; National Machine &c. Co. v. Standard &c. Co., 181 Mass. 275, 281, 63 N. E. 900; Nelson v. Loder, 132 N. Y. 288, 30 N. E. 369; Rogers v. Piland (N. C.), 100 S. E. 181; Anderson v. Griffith, 51 Or. 116, 93 Pac. 934; Barron v. Thompson (S. Car.), 97 S. E. 840; Miller v. Poff (Tex. Civ. App.), 217 S. W. 399. See also Union Machinery &c. Co. v. Thompson (Wash.), 182 Pac. 573. Cf. Hebblethwaite v. Flint, 173 N. Y. S. 81.

Bacon, Abr. Tender (F); Kelly v. Keith, 85 Ark. 30, 106 S. W. 1173; Town v. Trow, 24 Pick. 168.

Mitchell v. Roberts, 17 Fed. 776; McPherson v. James, 69 Ill. App. 337; Weeks v. Roberts, 152 Mass. 20, 24 N. E. 905; Stewart v. Brown, 48 Mich. 383, 12 N. W. 499; Norton v. Baxter, 41

§ 1817. Effect of tender in discharging obligations.

The effect of a tender in giving rise to a right under a bilateral contract has been elsewhere considered, and here there is only in question the effect of a tender upon an absolute obligation. Such an obligation may conceivably be performable only at one time, as a contract to work on a particular day, or the obligation though due on a particular day may be capable of performance on any day thereafter. A typical obligation of the latter sort is an obligation to pay money. A valid tender of performance of an obligation of the former sort necessarily discharges the obligation. 10 But a tender of performance of an obligation to pay money or of any obligation which is capable of performance after the day when performance was due, has no such effect. A right of action on a pecuniary debt is not barred by a prior tender; 11 but the debtor is free from liability for interest and costs from the date of the tender. 12 Moreover, the right to any lien, pledge, or security held by the creditor is thereby lost by him.13 This is true at the present time though

Minn. 146, 42 N. W. 865, 4 L. R. A.
305, 16 Am. St. Rep. 679; Kortright v.
Cady, 21 N. Y. 343, 78 Am. Dec. 145;
Christenson v. Nelson, 38 Or. 473, 63
Pac. 648; Thomas v. Seattle Brewing,
etc., Co., 48 Wash. 560, 94 Pac. 116,
15 L. R. A. (N. S.) 1164, 125 Am. St.
Rep. 945.

See supra, §§ 743, 744, 832, 833.
As to the effect on the obligation

of sureties, see supra, § 1235.

10 See supra, § 832; infra, § 1970.

11 Saunders v. Denison, 20 Conn. 521, 525; Independent Credit Co. v. South Chicago City R. Co., 121 Ill. App. 595; Sheriff v. Hull, 37 Iowa, 174; Town v. Trow, 24 Pick. 168; Memphis Mach. Works v. Aberdeen, 77 Miss. 420, 27 So. 608; Howard v. Hunt, 57 N. H. 467; Kelly v. West, 36 N. Y. Super. 304; Charlotte Bank v. Davidson, 70 N. C. 118; Loth-Hoffman Clothing Co. v. Schwartz (Okl.), 176 Pac. 916; Hays v. Bashor (Wash.), 185 Pac. 814. By Cal. C. C., Sec. 1500, a due offer of payment immediately

followed by deposit of the amount of the debt in a bank within the State in the creditor's name and notice to him, operates as payment. Colton v. Oakland Sav. Bank, 137 Cal. 376, 70 Pac. 225.

12 Bacon, Abr. Tender (F), and see cases in the preceding note.

13 Ratcliff v. Davies, Cro. Jac. 244; Coggs v. Bernard, 2 Ld. Raym. 909; Ryall v. Rolle, 1 Atk. 165, 167; Mitchell v. Roberts, 17 Fed. 776; Latta v. Tutton, 122 Cal. 279, 54 Pac. 844; McCalla v. Clark, 55 Ga. 53; Hathaway v. Fall River Nat. Bank, 131 Mass. 14; Hill v. Carter, 101 Mich. 158, 59 N. W. 413; Norton v. Baxter, 41 Minn. 146, 42 N. W. 865, 4 L. R. A. 305, 16 Am. St. Rep. 679; Moyer v. Leavitt, 82 Neb. 310, 117 N. W. 698; Frost v. Yonkers Sav. Bank, 70 N. Y. 553, 26 Am. Rep. 627; Davis v. Bigler, 62 Pa. St. 242, 1 Am. Rep. 393; Hyams v. Bamberger, 10 Utah, 3, 36 Pac. 202, 205.

In First Nat. Bank of Seattle v.

the tender is made after maturity of the debt or after the law day of a mortgage.14

§ 1818. Tender of chattel property.

The effect of a tender of specific articles logically should depend on the ability of the debtor to transfer title to the creditor by tendering the goods to which the creditor is entitled and storing them on his behalf; for unless the creditor is made owner the debt should still persist.

As the supposition is that the creditor rejects the tender, this means that the debtor must be able to compel performance of the creditor's obligation against the latter's will. As has been seen, 15 in many States the local law permits under a contract to sell such specific enforcement by the seller of the buyer's duty to take title, though in many jurisdictions this is not allowed. But where a unilateral obligation to transfer chattels exists it seems universally held at least in the United States that a tender if made and kept good operates as a complete satisfaction of the debtor's obligation, and in effect makes the creditor owner of the goods. 16 The American decisions are based directly or indirectly on an early New York

Gidden, 175 N. Y. App. Div. 563, 566, 162 N. Y. S. 317, McLaughlin, J., speaking for the Court said: "It may be conceded that tender of the amount 'due discharged the plaintiff's lien on the salmon, and defendant could have replevied the same; or, if damages had been sustained, interposed a counterclaim, or maintained an action for conversion. (Cass v. Higenbotam, 100 N. Y. 248, 3 N. E. 189; Reusens v. Arkenburgh, 135 N. Y. App. Div. 75, 119 N. Y. S. 821.) But the fact that the collateral was not surrendered when a tender of payment was made of the draft did not relieve the defendant from his obligation to pay. That obligation continued."

14 Caruthers v. Humphrey, 12 Mich. 270; Kortright v. Cady, 21 N. Y. 343, 78 Am. Dec. 145; Thomas v. Seattle Brewing &c. Co., 48 Wash. 560, 94

Pac. 116, 15 L. R. A. (N. S.) 1164, 125 Am. St. Rep. 945. And see supra, § 1810, ad fin.

15 Supra, §§ 1365 et seq.

16 Garrard v. Zachariah, 1 Stew. (Ala.) 272; Smith v. Loomis, 7 Conn. 110; Saunders v. Denison, 20 Conn. 521, 525; Fannin v. Thomason, 50 Ga. 614, 616; Games v. Manning, 2 Greene (Ia.), 251; Hambel v. Tower, 14 Iowa, 530; Wyman v. Winslow, 11 Me. 398, 26 Am. Dec. 542; Leballister v. Nash, 24 Me. 316; Robinson v. Batchelder, 4 N. H. 40; Slingerland v. Morse, 8 Johns. 474, 478; Sheldon v. Skinner, 4 Wend. 525, 528, 21 Am. Dec. 161; Hayden v. Demets, 53 N. Y. 426; Zinn v. Rowley, 4 Pa. St. 169; Dowagiac Mfg. Co. v. Higinbotham, 15 S. D. 547, 91 N. W. 330; Gilman v. Moore, 14 Vt. 457; Curtiss v. Greenbanks, 24 Vt. 536. See also Robbins v. Luce, 4 Mass. 474.