Sec 973

In England, though there is authority to the effect that a tender is pleadable to a quantum meruit,o there can be no such plea to a suit for unliquidated damages.2 In this country, under statute, in suits for damages for injuries, tenders are in some states allowed;3 though at common law the English rule obtains.4 sec 974. A tender may be made under protest; the party saying that he tenders the amount in controversy without admitting that he is bound for the debt;5 though the payment, in such case, if received, is absolute, and if not received, the tender is not operative if qualified by any condition.6

Sec 975

If not made under protest, a tender admits the validity of the contract on which the payment is proposed to be made; and a plea of tender relieves the plaintiff from the necessity of proving his case.7 But a mere payment of money into court, without a specific designation of the debt it is meant to extinguish, does not, when the suit covers several claims, and the payment is only pro tanto, admit any specific claim.8 It is otherwise when the two counts which the declaration contains are for the same claim, the one stating it generally, on a quantum meruit, and of the certificate to the redemption money, or, failing that, to acquire absolute title to the premises."

Tender not admissible for unliquidated damages.

May be madeunder protest.

Tender otherwise admits debt.

1 Giles V. Hart, 2 Salk. 622, though see report of this case in 1 Lord Ray. 255, and criticism in note to Dearie V. Barrett, 2 Ad. & E. 82.

2 Dearie V. Barrett, 2 Ad. & E. 82.

3 See Brown V. Neal, 36 Me. 407; Slack V. Brown, 13 Wend. 390.

4 Green V. Shurtliff, 19 Vt. 592; Huntington V. Bk., 6 Pick. 340; Raymond V. Barnard, 12 Johns. 274; Law V. Jackson, 9 Cow. 641.

5 Scott V. R. R., L. R. 1 C. P. 596 (overruling Simmons V. Wilmot, 3 Esp. 91); Manning V. Lunn, 2 C. & K. 13; Sweny V. Smith, L. R. 7 Eq. 324; Gassett V. Andover, 21 Vt. 342. See Benj. on Sales, 3d Am. ed. sec 725.

6 Wood V. Hitchcock, 20 Wend. 47. See Gassett V. Andover, 21 Vt. 342, where it was held that a tender made in full of all legal claims, which is received by the creditor with a protest that the sum is not sufficient, the creditor at the same time saying he will receive the money, and pass it to the debtor's account, will not bar the creditor's right to recover any amount due him exceeding the tender.

7 Stafford V. Clark, 2 Bing. 377; Bennett V. Francis, 2 B. & P. 550; Jones V. Hoar, 5 Pick. 291; Huntington V. Bank, 6 Pick. 340.

8 Stapleton V. Nowell, 6 M. & W. 9; Charles V. Branber, 12 M. & W. 743.

Sec 976

To constitute a discharge of a litigated debt, the plea must be accompanied by the payment, in suits on a money claim, of the money sued for into court; and unless the money be so paid in, the plaintiff is entitled to judgment for the amount admitted to be due, with costs.2 If the money, after a tender, be paid into court, the plaintiff, who persists in litigating the case and obtains judgment only for the amount paid in, cannot recover costs accruing after the tender.3 It is not necessary to show that the specific money paid into court is that actually tendered.4 The tender, in order to bar an action, must be pleaded.5