When a larger sum than is due is tendered, it is not necessary that the debtor pay or keep good the whole amount ; for, although the tender of money is supposed to be an admission by the debtor that the entire sum tendered is due and payable, yet it is not candueve evidence to that effect; Abel v. Opel, 24 Ind. 250. But where tender was made after suit brought, and the amount supposed by defendant to be due was paid into court, it was decided that the full amount must be paid over to the plaintiff, notwithstanding a much less sum was found by arbitrators to be due; Berkheimer v. Geise. 82 Pa. 64.
It is said that the amount must be stated in making the offer; Knight v. Abbott 30 Vt. 577. It must be made at the time agreed upon; 1 Sound. 33 a, n.; Maynard v. Hunt, 5 Pick. (Mass.) 240; but the offer may be given in evidence in mitigation of damages, if made subsequently, before suit brought; 1 Sound. 33 a, n.; statutes have been passed in many of the states, permit ting the debtor to make a tender at any time before trial, of the amount be admits to 'be due, together with all costs accrued up to date of tender, and compe ling plaintiff, in case be do not recover more than the sum tendered, to pay all costs subsequently in curred. See The Enos B. Phillips, 53 Fed. 153 ; McDaniel v. Upton, 45 I11. App. 151.
In Pennsylvania, by statute of 1705, in case of a tender made before suit, the amount tendered must in the event of a suit be paid into court ; Cornell v. Green, 10 S. & R. (Pa.) 14; otherwise, the plea of tender is a nullity. If so paid, tender is a good plea in bar, and if followed up, protects the de fendant; Wheeler v. Woodward, 66 Pa. 158. Tender may be made after suit brought by paying the amount tendered into court with the costs up to the time of payment; 1 T. & H. Pr. 744; Stratton v. Graham, 140 N. Y. Supp. 869. At common law the tender of a mortgage debt on the day it falls due and at the appointed place discharges the mort gage; but if made after the maturity of the debt, it must be kept good, in order to have that effect ; Crain v. McGoon, 86 Ill. 431, 29 Am. Rep. 37 ; Smith v. Kelley, 27 Me. 237, 46 Am. Dec. 595; Himmelmann v. Fitzpat rick, 50 Cal. 650, but mere tender is suffi cient to discharge the mortgage ; Kortright v. Cady, 21 N. Y, 343, 78 Am. Dec. 145; Car uthers v. Humphrey, 12 Mich. 270. Where a chattel mortgage is a mere lien, tender of the amount due at any time before sale un der foreclosure discharges the lien ; Thomas v. Malting Co., 48 Wash. 560, 94 Pac. 116,
15 L. R. A. (N. S.) 1164, 125 Am. St. Rep. 945, 15 Ann. Cas. 494 ; Gould v. Armagost, 46 Neb. 897, 65 N. W. 1064; Barbee v. Scog gins, 121 N. C. 135, 28 S. B. 259.
It must be at a suitable hour of the day, during daylight ; Wing v. Davis, 7 Greenl. (Me.) 31; at the place agreed upon, or, if no place has been agreed upon, wherever the person authorized to receive payment may be found; 2 M. & W. 223; and, in general, all the conditions of the obligation must be fulfilled. Where a chattel mortgage runs to several mortgagees jointly, to secure a joint debt, a tender to either mortgagee is good ; Flanigan v. Seelye, 53 Minn. 23, 55 N. W. 115. The money must have been actually produced and offered, unless the circumstances of the refusal amount to a waiver; 3 C. & P. 342 ; Bakemau v. Pooler, 15 Wend. (N. Y.) 637 ; Hunter v. Warner, 1 Wis. 141; or at least be in the debtor's possession ready for delivery; Sargent v. Graham, 5 N. H. 440, 22 Am. Dec. 469 ; Appleton v. Donaldson, 3 Pa. 381. In order to constitute a valid tender there must be actual ability, accompanied by immediate possibility of reaching out and laying hold of the thing to be delivered, and the making of a manual proffer thereof or of placing it in such a position that the per son to receive it may lay hold of it if he chooses ; Greenwood v. Watson, 171 Fed. 619, 96 C. C. A. 421; Eastern Oregon land Co. v. Moody, 198 Fed. 7, 119 C. C. A. 135. To sup port a plea of tender it must be shown that the tender was fairly made, that it was ab solute and unconditional, and that it covered the full amount then due; Lilienthal v, McCormick, 117 Fed. 89, 54 C. C. A. 475; a plea of tender must state how and to whom it was made, as well as the amount tendered, in that the court may see that as a matter of law the tender was good; Hard ing, Whitman Co. v. Knitting Mills, 142 Fed. 228.
actual tender is dispensed with if the party is ready and willing to pay it, but is prevented by the other's declaring that he will not receive it ; Odum v. R. Co., 94 Ala. 488, 10 South. 222. Presence of the debtor with the money 'ready for delivery is enough if the creditor be absent from the appointed place at the appointed time of payment ; Gilmore v. Holt, 4 Pick. (Mass.) 258 ; or if the tender is refused; Sands v. Lyon, 18 Conn. 18.