TENDER. An offer to deliver something, made in pursuance of some contract or obli gation, under such circumstances as to re quire no further act from the party making it to complete the transfer.
See LEGAL TENDER.
In Contracts. It may be either of money or of specific articles.
Tender of money must be made by some person authorized by the debtor ; 2 Maule & S. 86 ; to the creditor, or to some person properly authorized, and who must have ca pacity to receive it ; 1 Camp. 477; Huston v. Mitchell, 14 S. & R. (Pa.) 307, 16 Am. Dec. 506 ; Mclniffe v. Wheelock, 1 Gray Mass.) 600 (but necessity will sometimes create ex ceptions to this rule ; thus any one may make a tender for an idiot ; 1 Inst. 206 b; an uncle, although not appointed guardian, has been permitted to make a tender on be half of an infant whose father was dead ; Brown v. Dysinger, 1 Rawle [Pa.] 408); in lawful coin of the country ; 5 Co. 114 ; Hal lowell & A. Bank v. Howard, 13 Mass. 235 ; Moody v. Mahurin, 4 N. H. 296 ; or paper money vt hich has been legalized for this pur pose; Tborndike v. U. S., 2 Alas. 1, Fed. Cas. No. 13,987 ; as, U. S. treasury notes or "greenbacks ;" Legal Tender Cases, 12 Wall. (U. S.) 457, 20 L. Ed. 287 ; Bank of State v. Burton, 27 Ind. 426 ; or foreign coin made current by law ; 2 Nev. & M. 519; but a tender in bank notes will be good if not ob jected to on that account ; 2 B. & P. 526 ; Snow v. Perry, 9 Pick. (Mass.) 539; Brown v. Dysinger, 1 Rawle (Pa.) 408. A tender of a ground rent payable in Spanish milled dol lars of a specified weight is good, though it does not include nine days interest, amount ing to cents ; Milligan v. Marshall, 38 Pa. Super. Ct. 60.
He who tenders must be ready to pay or have within his reach the means to pay and actually offer to pay ; 10 East 101; Sargent v. Graham, 5 N. H. 440, 22 Am. Dec. 469. The money need not always be brought for ward as well as offered, especially if the party to whom the offer is made refuses to receive it ; 2 M. & S. 86 ; Breed v. Hurd, 6 Pick. (Mass.) 356. The person making the tender need not have the money in his posses sion ; 2 C. & P. 77. A refusal to accept a
check for the sole reason that it was insuffi cient in amount, is a waiver of all objection to the form of the tender ; Larsen v. Breene, 12 Colo. 480, 21 Pac. 498. A corporation is not bound to tender a certificate before it can maintain an action on a subscription for its stock ; Columbia Electric Co. v. Dixon, 46 Minn. 463, 49 N. W. 244. The exact amount due must be tendered ; Boyden v. Moore, 5 Mass. 865 ; Patnote v. Sanders, 41 Vt. 66, 98 Am. Dec. 564 ; Helphrey v. R. Co., 29 Ia. 480 ; though more may be tendered, if the excess is not to be banded back ; 5 Co. 114 ; 4 B. & Ad. 546; and asking change does not vitiate unless objection is made on that ac count ; 1 Camp. 70 ; 5 Dowl. & R. 289 ; see Gradle v. Warner, 140 Ill. 123, 29 N. E. 1118 ; and the offer must be unqualified ; 1 M. & W. 310 ; Wood v. Hitchcock, 20 Wend. (N. Y.) 47; Hunter v. Warner, 1 Wis. 141.
A tender accompanied with 'conditions which the party has no right to impose is of no avail; Odum v. R. Co., 91 Ala. 488, 10 South. 222. Though a conditional tender is not good, a tender under a protest, reserving the right of the debtor to dispute the amount due, is a good tender, if it does not impose any conditions on the creditor; [1892] 1 Ch. 1. Where a decree directed complainant to pay defendant, or into court, a certain sum, and defendant thereupon to deliver to the complainant, or into court, cei twin stock, held that the tender of the same with in' er est coupled with a demand for the surrender of the stock and a settlement of the re iding appeal was bad as a conditional tender and did not stop the running of the interest; Beardsley v. Beardsley, 86 Fed. 16, 29 C. C. A. 538. One who makes a tender in order to stop the running of the interest must show that he has kept on hand, so as to be constantly ready and able to pay, the amount of the tender in lawful money at any time the creditor should eleA to take it ; id. See Cheney v. Bilby, 74 Fed. 52, 20 C. C. A. 291.