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 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. case," which found its chief support in a statement of the Civil law of consignation by Pothier. 18 § 1819. Waiver of objection to tender. Under general principles, previously discussed, 19 tender is excused by obstruction or prevention or imposition of unwarranted conditions by the person to whom it was to be made. 20 It is also generally held that a refusal of tender upon one ground precludes subsequent objection to its validity on other grounds; 21 and even that a general refusal by the creditor failing to specify any cause waives any objection which could be then obviated by the debtor, and this is sometimes so provided by statute.22 Thus an objection to the actual production of 17 In Slingerland v. Morse, 8 Johns. 474, 478, the court said: "If a man [by bond] be bound to pay 100 quarters of wheat, and he tender it, at the day, he need not plead uncore prist, for the corn is bonum periturum, and it is a charge for the obligor to keep it. (Co. Lit. 207 a. Peytoe's Case, 9 Co. 79 a). So it was held, still more early (20 Edw. IV. 1 Bro. tit. Tout Temps Pr. st. pl. 31) that if an obligation be to enfeoff the plaintiff, by a day, or to deliver him a horse, tender and refusal is a bar forever. The delivery of the goods was a thing collateral to the obligation, as the books term it, and, by tender and refusal, the plaintiff shall never be entitled to the money. Here was no precedent debt or duty. He must resort to the specific articles tendered, and the person in whose possession they are, holds them as his bailee, and at his risk. The effect of a tender and refusal, correctly made, of a specific article, is analogous to the effect of a consignation under the French law. (Pothier, Traité des Obligations, No. 545.) " 18 In Sheldon v. Skinner, 4 Wend. 525, 529, 21 Am. Dec. 161, the New York Court referring to the earlier decision quoted from Pothier, Obligations, No. 545: "The effect of a con signation, if it is adjudged to be valid, is, that the debtor is thereby absolutely discharged; and although subtilitate juris he continues to be the owner of the things consigned until they are taken away by the creditor, they are no longer at his risque, but at that of the creditor, who, from being a creditor of a certain amount generally, becomes the creditor of the particular articles which are so consigned, tanquam certorum corporum; and he is no longer the creditor of his original debtor, who is entirely liberated, but of the consignatory, who obliges himself by a quasi contract to deliver the articles in his custody to the creditor if the consignation is adjudged good, or to the debtor if it is declared to be null." 19 See supra, § 677. 20 Servel v. Jamieson, 255 Fed. 892, 167 C. C. A. 212 Smith v. Thomas (Ala.), 78 So. 820; Evans Furniture Co. v. Meyers (Ala. App.), 81 So. 843; Baird v. Union Mut. L. Ins. Co. (Neb.), 173 N. W. 686. Cf. Greenfield v. Taylor (Minn.), 170 N. W. 345. 21 See supra, § 743; Stanley v. Pilker (S. Dak.), 167 N. W. 393. 22 Cal. Civ. Code, § 1501; Code Civ. Proc., Sec. 2076; McWhirter v Crawford, 104 Ia. 550, 553, 73 N. W. 1021, 72 N. W. 505. money is excused by a refusal to receive the money if produced. 23 An objection that the medium of payment is not legal tender is similarly waived not only by a refusal on other grounds but also by a general refusal not specifying the character of the medium of payment as the ground of refusal.2 An objection to a deficiency in amount may be waived in the same way.25 So where change is demanded from a tendered sum in excess of the debt, objection is waived if some other ground is stated.* It must be remembered, however, that in order to make out a waiver, it is necessary that there should be an existing capacity on the part of the debtor to perform and therefore to correct, if proper objection had been made, whatever defect there might be in his tender.27 It seems also that the whole matter 23 Black v. Smith, Peake, N. P. 88; Odum v. Rutledge, etc., R. Co., 94 Ala. 488, 10 So. 222; Latimer v. Capay Valley Land Co., 137 Cal. 286, 70 Pac. 82; Hall v. Norfolk Fire Ins. Co., 57 Conn. 105, 17 Atl. 356; Lamar v. Sheppard, 84 Ga. 561, 10 S. E. 1084; Ventres v. Cobb, 105 Ill. 33; Austin v. Smith (Iowa), 109 N. W. 289; McStea v. Warren, 26 La. Ann. 453; Stephenson v. Kilpatrick, 166 Mo. 262, 65 S. W. 773; Baird v. Union Mut. L. Ins. Co. (Neb.), 173 N. W. 686; Haney v. Clark, 65 Tex. 93; Weinberg v. Naher, 51 Wash. 591, 99 Pac. 736, 22 L. R. A. (N. S.) 956. But see Thomas v. Evans, 10 East, 101; Dunham v. Jackson, 6 Wend. 22; Farnsworth v. Howard, 1 Coldw. 215. Cf. Brown v. Gilmore, 8 Me. 107, 22 Am. Dec. 223. 24 Harriman v. Meyer, 45 Ark. 37; Snow v. Perry, 9 Pick. 539. Thus where there are funds in the bank to meet it, a check is a good tender if no objection is taken on the ground that legal tender is desired. Kitchell v. Schneider, 180 Ind. 589, 103 N. E. 647; Bonaparte v. Thayer, 95 Md. 548, 52 Atl. 496; Ricketts v. Buckstaff, 64 Neb. 851, 90 N. Y. 915; Pershing v. Feinberg, 203 Pa. 144, 52 Atl. 22; Schæffer v. Coldren, 237 Pa. 77, 85 Atl. 98; Ann. Cas. 1941 B. 175; Wright v. Douglas (Wyo.), 183 Pac. 786. But see Jennings v. Mendenhall, 7 Ohio St. 257. If objection is made to that medium of payment, a check is not a valid tender. Servel v. Jamieson, 255 Fed. 892, 167 C. C. A. 212; Roanoke R. R. & Lumber Co. v. Privette (N. C.), 100 S. E. 79; and see cases, supra. If there are insufficient funds in the bank the tender of a check though no good objection is made by the creditor is not a valid tender. New York Utility Co. ". Williamsburg Steam Laundry Co., 187 N. Y. App. D. 110, 175 N. Y. S. 60. 25 Dozier v. Vizard Inv. Co. (Ala.), 83 So. 572; Bender v. Bean, 52 Ark. 132, 12 S. W. 180, 241; Guengerich v. Smith, 36 Ia. 587; Sheriff v. Hull, 37 Ia. 174. See also Ricker v. Blanchard, 45 N. H. 39. 26 Bevan v. Rees, 7 Dowl. P. C. 510; People's Furniture, etc., Co. v. Crosby, 57 Neb. 282, 77 N. W. 658, 73 Am. St. Rep. 504; Lohman v. Crouch, 19 Gratt. 331. 27 Kofoed v. Gordon, 122 Calif. 314, should be dealt with rather as one of evidence justifying certain inferences to be drawn from the creditor's attitude in each case, than as an absolute rule of law. Thus where a debtor tendered $10 in payment of a debt which the court found amounted to nearly $20,000, the California Court, though confronted with a positive statutory provision and a previous decision of its own that a tender of less than the amount due was valid if no objection was taken on that ground, 28 was clearly unwilling to admit that a failure to make more than a general refusal to the tender operated as an admission of the correctness of the amount and discharged the creditor's lien or collateral security.2 The more technical the objection to the tender, the more reasonable will be the inference from slight evidence that the objection is waived; and waiver of a particular objection will more readily be inferred where specific objections are taken by the creditor than where he simply declines the tender in general terms. A defect in the amount tendered should not so readily be deemed waived as a defect in time, place, manner, or medium of payment, because it is less reasonable to assume that the creditor assented to receive a deficient amount than that he assented to receive it in a different manner from that which his contract entitled him to. Moreover, even if the creditor should assent to receive a smaller amount than that to which he was entitled, if the amount of the debt was liquidated and undisputed his agreement, however express, to forego a portion of the claim would not deprive him of a right to recover it subsequently.30 The defective tender might prevent interest and costs from accruing, and might discharge a lien, but it would have no further effect.31 54 Pac. 1115; Smith v. Central &c. Imp. Co. (Cal. App.), 187 Pac. 456; Leask v. Dew, 102 N. Y. App. Div. 529, 92 N. Y. S. 891, and see supra, §§ 743, 744. 28 Cal. Code Civ. Proc., Sec. 2076; Cal. Civ. Code, Sec. 1501; Oakland Sav. Bank v. Applegarth, 67 Cal. 86, 7 Pac. 139, 476. See also Latimer v. Capay Valley Land Co., 137 Cal. 286, 70 Pac. 82. 29 Colton v. Oakland Bank, 137 Cal. 376, 70 Pac. 225. 30 See supra, § 120. 31 Sheriff v. Hull, 37 Ia. 174; McWhirter v. Crawford, 104 Ia. 550, 73 N. W. 1021; Carpenter v. Welch, 40 Vt. 251; Patnote v. Sanders, 41 Vt. 66, 98 Am. Dec. 564. Written contracts may be varied by subsequent oral agreement. 1828 Parol discharge of a party to a negotiable instrument-English law. 1832 1833 Effect of accord on previous cause of actions-intention of parties.. 1841 Accord no defence at common law. . . . . 1842 Even though full performance tendered, or part performance rendered.... 1843 Equitable relief for breach of promise to forbear. 1844 Accord should be specifically enforced.... 1845 Accord may itself be taken as satisfaction and is then a bar. 1846 Presumption that accord is not intended as satisfaction... 1847 Consequence of non-performance of accord 1848 Sealed contracts.. Debts of record. 1849 1850 Requisites of satisfaction like those of consideration. 1851 Reasonableness of satisfaction. . . . 1852 Cases where satisfaction is ineffectual. 1853 Check sent in payment of disputed claim. 1854 Principles governing the question. . . . 1855 Inability to deny that an act was done on the only terms authorized 1856 Accord and satisfaction with a third person-English cases. |