Sec 977

The tender, to be operative, must be absolute. The debtor can place on it no conditions other than those incident to the nature of the transaction;6 and thence if made on the condition that the creditor would admit other claims to be unfounded, or that it cancels the debtor's general indebtedness, it is a nullity.7 - It has also been held that a condition that a full receipt should be given vitiates a tender, though the creditor cannot afterwards on this ground impugn a tender made to him when at the time of the tender the only objection he made was to the amount.1 And a debtor is, in any view, not entitled to insist on a receipt in full of all demands when this would cover a larger ground than that covered by the tender;2 nor is the creditor bound to give such a receipt when it would cover anything more than the actual tender.3 If the condition, however, be one purely formal, which the debtor had a right to make, it does not vitiate the tender.4 And a condition not objected to at the time may be regarded as waived.5 - The meaning of an ambiguous tender is for the jury; if unambiguous, for the court.6 - A tender, as we sumptions against himself, by saying, ' I pay this as the whole that is due you,' but if he requires the other party to accept it as all that is due, that is imposing a condition; and when the offer is so made, the creditor may refuse to consider it as a tender."

To discharge litigated debt, money must be paid into court.

Conditional tender inoperative.

1 Elgar V. Watson, 1 C. & M. 494; Wright V. Goddard, 8 Ad. & E. 144; Bennett V. Francis, 2 B. & P. 550; Jones V. Hoar, 5 Pick. 285; Huntington V. Bank, 6 Pick. 340. But see Spalding V. Vandercook, 2 Wend. 431.

2 Chapman V. Hicks, 2 C. & M. 633; Gilkeson V. Smith, 5 W. Va. 128; see supra, sec 960.

3 Leake, 2d ed. 859; see Harmer V. Priestley, 16 BeaV. 569; Shiver V. Johnston, 62 Ala. 37; supra, sec 960.

4 Colby V. Stevens, 38 N. H. 191.

5 Hegler V. Eddy, 53 Cal. 597.

6 Benj. on Sales, 3d Am. ed. sec 721; Bevans V. Rees, 5 M. & W. 309; Finch V. Miller, 5 C. B. 428; Steam Stoker Co. in re, L. R. 19 Eq. 416; Brown V. Gilmore, 3 Greenl. 110; Robinson V.

Batchelder, 4 N. H. 40; Buffum V. Buffum, 11 N. H. 451; Loring V. Cooke, 3 Pick. 48; Richardson V. Chemical Laboratory, 9 Met. 42; Wood V. Hitchcock, 20 Wend. 47; Eastland V. Longs-horn, 1 N. & McC. 194; Flake V. Nuse, 51 Tex. 98; see Gould V. Bank, 86 N. Y. 75.

7 Leake, 2d ed. 866; Eckstein V. Reynolds, 7 Ad. & E. 80; Evans V. Judkins, 4 Camp. 156; Foord V. Noll, 2 Dow. N. S. 617; Bowen V. Owen, 11 Q. B. 131; Mitchell V. King, 6 C. & P. 237; Sutton V. Hawkins, 8 C. & P. 259; Hastings V. Thorley, 8 C. & P. 573; Hepburn V. Auld, 1 Cranch, 321; Richards V. Chem. Lab., 9 Met. 42; see Brooklyn Bank V. Degrauw, 23 Wend. 342.

1 Richardson V. Jackson, 8 M. & W. 298; Laing V. Meader, 1 C. & P. 257; see Thayer V. Brackett, 12 Mass. 450. In Cole V. Blake, Peake, 179, 238, and Laing V. Meader, 1 C. & P. 257, it was held that a stamped receipt could not he exacted. But in Richardson V. Jackson, 8 M. & W. 298, Rolfe, B., said: "I should he sorry to hold this to be a had tender" (there being no objection at the time to the receipt being required) " on account of the receipt having been mentioned. I should wish to encourage all prudent people to take receipts, for if they do not, in case of death, the representatives may be deprived of all evidence of the payment." Benj. on Sales, 3d Am. ed. sec 726, referring also to Loring V. Cooke, 3 Pick. 48; Richardson V. Chemical Laboratory Co., 9 Met. 42; Wood V. Hitchcock, 20 Wend. 47.

In England by stat. 16 & 17 Vict. c. 59, stamps have to be attached to all receipts of 21. or over, and the debtor is empowered to tender a blank receipt duly stamped at the time of payment. And it was held in Jones V. Arthur, 8 Dowl. 442, that a tender made by a cheque in a letter was not vitiated by the fact that the letter requested a receipt in return.

2 Glasscott V. Day, 5 Esp. 48; Thayer V. Brackett, 12 Mass. 450; Sanford V. Bulkley, 30 Conn. 344; Woodf. Hitchcock, 20 Wend. 47; see Foster v, Drew, 39 Vt. 51.

3 Cheminant V. Thornton, 2 C. & P. 50; Sanford V. Bulkley, 30 Conn. 344.

4 Saunders V. Frost, 5 Pick. 259; Wheelock V. Tanner, 39 N. Y. 481.

5 Richardson V. Jackson, 8 M. & W. 298; Saunders V. Frost, 5 Pick. 259.

6 Eckstein V. Reynolds, 7 Ad. & E. 80; Marsden V. Goode, 2 C. & K. 133. In Bowen V. Owen, 11 Q. B. 130, adopted by Mr. Benj. (3d Am. ed. sec 724) as giving the latest law on this topic, a tenant sent an agent to his landlord with a letter, saying: "I have sent with the bearer, T. T., a sum of 26/. 5s. 7 1/2d. to settle one year's rent of Nant-y-pair." The agent told the landlord he had the money with him, but the landlord refused it, saying more was due. The agent went away, but soon came back again, saying he had a few pounds more in his pocket to pay certain arrears of duties, but the landlord again refused, saying more was due. It was held in the king's bench that the tender was conditional, Earle, J., saying: "The person making a tender has a right to exclude prehave already seen, is not vitiated by the fact that it is accompanied by a protest.1.