A tender may be made in the case of un liquidated damages, but it must be kept good, especially where there is a dispute as to the amount due ; Dunbar v. De Boer, 44 App. 615.
See PAYMENT ; ACCORD AND SATISFACTION.
Tender of specific articles must be made to a proper person, by a proper person, at a proper, time ; 2 Pars. Contr. 158. The place of delivery is to be determined by the con tract, or, in the absence of specific agreement, by the situation of the parties and circum stances of the case ; Bronson v. Gleason, 7 Barb. (N. Y.) 472 ; for example, at the manu factory or store • of the seller on demand; Rice v. Churchill, 2 Den. (N. I.) 145 ; at the place where the goods are at the time of sale; Veazy v. Harmony, 7 Greenl. (Me.) 91; Barr v. Myers, 3 W. & S. (Pa.) 295 ; McMurry v. State, 6 Ala. 326; the seller's place of abode, when the articles are portable, like cattle, and the time fixed; Goodwin v. Hol brook, 4 Wend. (N. Y.) 377 ; Aldrich v. 1 Greenl. (Me.) 120, 10 Am. Dec. 45. When the goods are cumbrous, it is presumed that the seller was to appoint a place ; Bixby v. Whitney, 5 Greenl. (Me.) 192; Mingus v. Prit chet, 14 N. C. 78 ; or, if he fails to do so upon request, the buyer may appoint a place, giv ing notice to the seller, if possible ; Lamb v. Lathrop, 13 Wend. (N. Y.) 95, 27 Am. Dec. 174; Aldrich v. Albee, 1 Greenl. (Me.) 120, 10 Am. Dec. 45. Whether a request is necessary if the seller be without the state, see Bixby v. Whitney, 5 Greenl. (Me.) 192 ; 2 Greeni. Ev. § 611. The articles must be set apart and distinguished so as to admit of identifi cation by the buyer ; Barns v. Graham, 4 Cow. (N. Y.) 452, 15 Am. Dec. 394 ; Bates v. Bates, Walk. (Miss.) 401, 12 Am. Dec. 572. It must be made during daylight, and the arti cles must be at the place till the last hour of the day ; Sweet v. Harding, 19 Vt. 587; Duckham v. Smith, 5 T. B. Monr. (Ky.) 372 ; unless waived by the parties.
In Pleading. If made before action brought ; Suffolk Bank v. Bank, 5 Pick. (Mass.) 106 ; Levan v. Sternfeld, 55 N. J. L. 41, 25 Atl. 854 ; tender may be pleaded in ex cuse ; 2 B. & P. 550; Jones v. Hoar, 5 Pick. (Mass.) 291; it must be on the exact day of performance ; 1 Saund. 33 a, n.; and if a ten
der is relied on as a defence, it must be pleaded ; Hughes v. Eschback, 7 D. C. 66. It cannot be made to an action for general dam ages when the amount is not liquidated ; 2 Burr. 1120 ; as, upon a contract; 2 B. & P. 234; covenant other than for the payment of money ; 1 Ld. Raym. 566 ; tort; 2 Stra. 787; or trespass; 2 Wils. 115. It may be pleaded, however, to a quantum meruit; 1 Stra. 576; accidental or involuntary trespass; Slack v. Brown, 13 Wend. (N. Y.) 390; Tracy v. Strong, 2 Conn. 659 ; Brown v. Neal, 36 Me. 407 ; covenant to pay money ; 7 Taunt. 486.
The effect of a tender is to put a stop to accruing damages and interest, and to entitle the defendant to judgment for his costs ; 3 Singh. 290; Carley v. Vance, 17 Mass. 389 ; Cornell v. Green, 10 S. & R. (Pa.) 14 ; and it may be of effect to prevent interest accruing, though not a technical tender ; Suffolk Bank v. Bank, 5 Pick. (Mass.) 106 ; but unless kept good by payment into court, it will not de feat a recovery of costs ; Ramirez v. S. S. Co., 107 Fed. 530.
It admits the plaintiff's right of action as to the amount tendered; Eddy & Hathaway v. O'Hara, 14 Wend. (N. Y.) 221; Phoenix Ins. Co. of Brooklyn v. Readinger, 28 Neb. 587, 44 N. W. 864; at the date of the suit; Giboney v. Ins. Co., 48 Mo. App. 185 ; and the plaintiff is entitled to judgment for that amount at least ; Brunswick Realty Co. v. Inv. Co. (Utah) 134 Pac. 608 ; but nothing more, and does not prevent the malting of any defence inconsistent with the admissions of the original contract or cause, of action, as to any claim beyond that of the sum tendered; Wilson v. Doran, 110 N. Y. 101, 17 N. E. 688. The benefit may be lost by a subsequent de mand and refusal of the amount due; 5 B. & Ad. 630 ; Town v. Trow, 24 Pick. (Mass.) 168; but not by a demand for more than the sum tendered; Thetford v. Hubbard, 22 Vt. 440 ; or due ; 3 Q. B. 915.
See LEGAL TENDER; PAYMENT INTO COURT.
A plea of tender, if defective, should be demurred to, and plaintiff cannot question its sufficiency after accepting the money paid into court under such plea ; Gardner v. Black, 98 Ala. 638, 12 South. 813.