Rohn v. Heidrich

Mr. Justice Baker delivered the opinion of the court. The only question presented is as to the sufficiency of the tender. The rules in respect to tender are much more liberal and flexible in equity than at law. The trust deed provides that on payment of the indebtedness a reconveyance of the premises shall be made by the trustee or the successor in trust on receiving his reasonable charge therefor. The tender was not impaired by the demand of a release deed, for the defendants did not insist on any condition except such as the complainant was bound to perform at the time of payment by the terms of the trust deed, and they tendered the reasonable charges of the trustee for making such release deed. Mankel v. Belscamper, 84 Wis. 218. The word “tender” in the case of mutual and concurrent promises “does not mean the same kind of offer as when it is used in reference to the payment or offer to pay an ordinary debt due in money, where the money is offered to a creditor who is entitled to receive it, and nothing further remains to be done, and the transaction is completed and ended; but it only means a readiness and willingness, accompanied with an ability on the part of one of the parties, to do the acts which the agreement requires him to perform, provided the other will concurrently do the things which he is required by it to do, and a notice by the former to the latter of such readiness. Such readiness, ability and notice are sufficient evidence of, and indeed imply, an offer or tender in the sense in which those terms are used in reference to the kind of agreements we are now considering. It is not an absolute, unconditional offer to do or transfer anything at all events, but it is, in its nature, conditional only, and dependent on, and to be performed only in case of, the readiness of the other party to perform his part of the agreement.” Smith v. Lewis, 26 Conn. 110, quoted with approval in Clark v. Weis, 87 Ill. 438, 441. A tender of performance may be accompanied with such conditions as were by the terms of the contract between the parties conditions precedent to be performed by the party to whom the tender is made. Wheelock v. Tanner, 39 N. Y. 481; Bailey v. Buchanan County, 115 N. Y. 297. The same rule applies where the acts to be performed by the respective parties are concurrent acts. The tender was refused on the sole ground that it did not include $50 for solicitor’s fees for Bohn’s solicitor, and this was a waiver of all other grounds of objection to the tender. The decree will be reversed and the cause remanded to the Circuit Court with directions to overrule the exceptions to the Master’s report and to enter an order confirming the report and a decree in accordance with its findings and recommendations. Decree reversed and cause remanded with directions.