Case v. Green

The opinion of the Court was delivered by Rogers, J. The case supposes that the payer attended at the day and place fixed by the agreement, and delivered or was ready to deliver the property in satisfaction of the debt; so that the question is, what effect this has on the-action? In general, a tender does not ex [264] tinguish the demand. The only effect of it is to preclude any claim for interest; but still, in some eases, a tender by one party, to pay a debtor perform a duty, and the refusal of the other to accept thereof, amounts to a payment of the debt or a performance of the duty. Thus, if A., without any debt or duty preceding, enfeoff B. of land, with condition for the payment of 100 pounds to B., in the nature of a gratuity, and A. tender the money to B., and B. refuse to accept it, the land is thereof discharged forever. So, if a single bond be entered into for the payment of 20 pounds to the obligee, and afterwards a deed be made, that, at the payment of 10 pounds, the bond shall be void, and the obligor tender the 10 pounds, and the obligee refuse to accept it, the obligor is discharged forever. If a man enter into an obligation in the penalty of 100 pounds, with condition to perform an award, or to do some other thing, for the benefit of the obligee, which it was not incumbent on the obligor to do at the time of entering into the obligation, a tender by the obligor, of performing the award, or of doing the other thing, and a refusal by the obligee to accept thereof, are a perpetual bar to the action upon the obligation; for, as the condition is satisfied by the tender and refusal, the penalty cannot be recovered; and, as the performing of the award or doing the other thing, which it was not incumbent on the obligor to do, at the time of entering into it, could not be parcel of the obligation, no action lies therefor, to compel the performance of the award or the doing of the other thing. 1 Inst. 207; 5 Bac. tflb. 11, tit. Tender. If a man be bound in 200 quarters of wheat, for the delivery of 100 quarters, if the obligor tender at the day 100 quarters, he shall not plead uncore prist, because, albeit, as in these cases it be parcel of the condition, yet they be bona peritura, and it is a charge for the obligor to put them. The delivery of the goods is collateral to the obligation, as it is termed, and by tender and refusal, the plaintiff shall never be entitled to the money. In the Institutes, it is said, if the obligee refuse them, when a lawful tender is made to him, it shall be accounted his own folly. And in all such cases, in pleading of the tender and refusal, the parties shall not be driven to plead, that he is ready to pay the same, or tender it in court. So, also, in Slingerland v. Morse, 8 Johns. Rep. 475, where the contract was to deliver horses and household property, which was tendered and refused, it was decided, that such a tender and refusal was a complete bar to the suit, on the contract; and that the plaintiff must resort to the person in whose possession the goods are, and who held them as bailee and at his risk. The only difference between the case cited and,the case at bar is, that here, there was not a tender and refusal, because the payor did not attend at the time and place appointed. But this can make no difference in principle; for every consequence which would have followed from a tender and refusal, will follow from being ready to tender, in case the person, whose duty it was to be present at the place where the tender was intended to have been made, neglect to be present. If every such [265] consequence did not follow, it would frequently happen, that not-notwithstanding one party has done all that was in his power to make a tender, all would be rendered ineffectual, by the wilful absence of the other party. 5 Bac. Ab. 14, title Tender. The effect of the tender and refusal or being ready to tender, when the other party does not attend, is to divest the property from the original owner and invest it in the payee. Of course, all right of action is extinguished, on the contract; it having been satisfied and paid. If, therefore, the plaintiff, has any remedy, it must be by suit against the party in whose possession the goods are, and not upon the contract. It must be remarked, that the articles were not of such a nature as to be liable to injury by an exposure to the weather for a few days. Judgment affirmed.