Sec 980

Whenever by the terms of a contract a debt must be paid on a particular day, it must at common law be tendered on that day; and the tender must be made a sufficient time before midnight to enable the other party to receive and count it.10 This has frequently To divisible debt there may be tender pro tanto.

Tender must be on the day named and at fixed place.

1 Leake, 2d ed. 865; Benj. on Sales, 3d Am. ed. sec 719; Jones V. Owen, 5 Ad. & E. 222; Branden V. Newington, 3 Q. B. 915; Hesketh V. Fawcett, 11 M. & W. 356; Dixon V. Clark, 5 C. B. 365. As to divisibility, see supra, sec 233, 338, 511, 552, 899.

2 Robinson V. Ward, 8 Q. B. 920.

3 Ibid.; Tyler V. Bland, 9 M. & W. 338; Searles V. Sadgrove, 5 E. & B. 639.

4 Leake, 2d ed. 865; Benj. on Sales, 3d Am. ed. sec 719; Strong V. Harvey, 3 Bing. 304; Hardingham V. Allen, 5 C. B. 793.

5 Dixon V. Clark, 5 C. B. 365; Boy-den V. Moore, 5 Mass. 365; Cupples V. Gallighan, 6 Mo. Ap. 62.

6 Dixon V. Clark, 5 C. B. 365; Bowen V. Owen, 11 Q. B. 130.

7 Leake, 2d ed. 865; citing Searles V. Sadgrove, 5 E. & B. 639; Phillpotts V. Clifton, 10 W. R. Ex. 135; Bellows V. Smith, 9 N. H. 285; Cary V. Bancroft, 14 Pick. 315; see Brooklyn Bk. V. De Grauw, 23 Wend. 342.

8 Foley V. Mason, 6 Md. 37.

9 Henwood V. Oliver, 1 Q. B. 409; Finch V. Miller, 5 C. B. 428.

10 Supra, sec 869 et seq. 884; Wade's case, 5 Co. Rep. 114, a; Startup V. Macdonald, 6 M. & G. 593; City Bank V. Cutter, 3 Pick. 414; Dewy V. Humphrey, 5 Pick. 187; aliter in Connecticut, Tracy V. Strong, 2 Conn. 659. In Massachusetts by Gen. Stat. c. 130, sec been held to be the case with regard to negotiable paper. "A plea by the acceptor of a bill or the maker of a note, of a tender post diem, is bad, notwithstanding the tender is of the amount of the bill or note, with interest from the day it became due up to the day of the tender, and notwithstanding the plea alleges that the defendant was always ready to pay, not only from the time of the tender, but also from the time when the bill or note became payable."1 - Tender by drawer or endorser must be immediately on receipt of notice of dishonor.2 Tender of the amount due on a note payable on demand may be made at any time before its actual demand.3 - Tender, also, may be made at any time of an indebtedness arising from money lent or goods sold on which there is no designated credit,4 or on a banker's account, or the account of a party with whom money is deposited.5 - To a plea of tender it may be replied that the tender was too late;6 but the fact that the plaintiff had previously instructed an attorney to bring an action for the debt, and that process had been applied for, is no replication to a tender made before process issued;7 the defendant not being bound in such case for the cost of the writ or that of the attorney's letter.8 - A tender of rent is good when made even on a late hour of the day when.

23, a tender may be made at any time after maturity. See 2 Ch. on Cont. 11th Am. ed. 1190. That last limit as to time is allowed, see infra, sec 884-5. As to cases in which time is of essence, see supra, sec 887.

1 Hume V. Peploe, 8 East, 168; Poole V. Tunbridge, 2 M. & W. 223; City Bank V. Cutter, 3 Pick. 414; Dewey V. Humphreys, 5 Pick. 187.

2 Leake, 2d ed. 860; citing Walker V. Barnes, 5 Taunt. 240; Siggers V. Lewis, 1 C. M. & R. 370.

3 Parke, B., Norton V. Ellam, 2 M. & W. 461; Cotton V. Goodwin, 7 M. & W. 147.

4 Ibid.; Kingston V. Kingston, 11 M. & W. 233.

5 Ibid.; Pott V. Clegg, 16 M. & W. 321. 6 Smith V. Manners, 5 C. B. N. S. 632.

7 Briggs V. Calverley, 8 T. R. 629; Moffat V. Parsons, 5 Taunt. 307.

8 Kirton V. Braithwaite, 1 M. & W. 310; Caine V. Coulton, 1 H. & C. 764. See as to costs supra, sec 972. In Poole V. Tunbridge, 2 M. & W. 223, Parke, J., said: "It is also clearly settled that the meaning of a plea of tender is that the defendant was always ready to perform his engagement according to the nature of it, and did perform it as far as he was able, the other party refusing to receive the money. Hume V. Peploe is a decisive authority that the plea must state, not only that the defendant was ready to pay on the day of payment, but that he tendered on that day. This plea does not so state, and is therefore bad." See Rose V. Brown, Kirby, 295.

it becomes due,1 and usually performance may be deferred to the last business hour of the day.2 This rule has been, however, modified in many jurisdictions so as to sustain tenders when made on a day after the maturity of the debt, provided time was not of the essence of the contract.3 - A tender before the maturity of a debt, when a debt draws interest, is defective;4 though it has been questioned whether, apart from the question of interest, a tender of payment of a debt before maturity is not good,6 and Mr. Parsons6 argues that "the courts of this country would, generally, hold a tender valid that was made before the debt was due, provided the debt did not draw interest, or if, when the debt did draw interest, the tender included interest to the maturity of the debt." But this would put creditors to a great disadvantage, debts payable in future becoming virtually debts payable at the election of the debtor. Mortgagees, for instance, would pay off when interest fell, and hold on when interest rose; and securities payable at no matter how distant a date would really be payable at any time at the will of the debtor. That this is not the sense of the business community is illustrated by the fact that good six per cent. loans which a few years ago sold at par, are now (1882) selling at a premium of twenty per cent. That they could not be paid off before maturity, this premium shows. - The place of tender is usually the place of payment.7