Sec 987

A tender of goods, to be operative, must be made in such a way as to enable the creditor to see that the articles tendered are what he is really required to take.7 Hence, an offer to deliver in closed casks, in which it is alleged the goods are contained, but examination of which is refused, is not an adequate tender.8 The goods must be specifically set apart by the debtor,1 unless accepted pro tanto.2

Cheque or other security is not a tender.

Tender of goods must be specific.

1 Benj. on Sales, 3d Am. ed. sec 716; Caine V. Conlton, 1 H. & C. 764; Bank U. S. V. Bank of Georgia, 10 Wheat. 333; Snow V. Perry, 9 Pick. 542: Warren V. Mains, 7 Johns. 476; Brown V. Dysinger, 1 Rawle, 408; Towson V. Bank, 6 Har. & J. 53; Wheeler V. Knaggs, 8 Ohio, 169; Fosdick V. Van Husan, 21 Mich. 567; Seawell V. Henry, 6 Ala. 226; Williams V. Rorer. 7 Mo. 556; Cockrill V. Kirkpatrick, 9 Mo. 697; Ball V. Stanley, 5 Yerg. 197; Noe V. Hodges, 3 Humph. 162.

2 Moody V. Mahurin, 4 N. H. 296; Donaldson V. Benton, 4 DeV. & B. 435.

3 Hough V. May, 4 Ad. & E. 954; Gordon V. Strange, 1 Ex. 477; Grussy V. Schneider, 50 How. Pr. 134; as to payment by cheques, see sec 953; see Dunham V. Jackson, 6 Wend. 22, where the offer, however, was merely to draw a cheque. Cf. Jennings V. Men-denhall, 7 Oh. St. 257.

4 Foley V. Mason, 6 Md. 37.

5 Leake, 2d ed. 865; Searles V. Sad, grove, 5 E. & B. 639; Phillpotts V. Clifton, 10 W. R. Ex. 135.

6 Supra, sec 984.

7 Veazy V. Harmony, 7 Greenl. 91; Bates V. Churchill, 32 Me. 31; Newton V. Galbraith, 5 Johns. 119; Barns V. Graham, 4 Cow, 482. As to tender in rescission, see supra, sec 285.

8 Isherwood V. Wkitmore, 10 M. & W. 757.

Sec 988

The rule already stated that a tender must be unconditional applies as fully to goods as to money.3 Hence, a tender of goods on condition that the creditor will cancel and deliver up the contract is inoperative.4

Sec 989

As is elsewhere seen, the goods tendered must conform to the description in the contract,5 and must be merchantable by local law.6 But a substantial conformity is sufiicient.7 sec 990. If a specific time and place be fixed for the delivery, it is a sufficient tender of the debt for the debtor to be present at the designated place and time with the thing to be delivered.8 If the creditor refuses to attend at such time and place, this, supposing the tender to be duly made, relieves the debtor from liability.9 If the place be not fixed, the debtor must seek out the creditor, and deliver to him personally, though to perform a home contract it will not be necessary for him to follow the creditor to a foreign state.10 When the contract provides that goods shall be delivered on a particular time at a particular place, conformity with this is sufficient;1 and the delivery of the goods at that time and place relieves the debtor from further duty in this relation;2 and this, even though no one be present to receive the tender.3 But it is elsewhere held, that a plea to be good under such circumstances, must aver that the de-fendant was always ready to deliver the goods.4 - The time of tender has been independently considered.5 - Where the place of delivery is to be designated by the vendee, a tender is not required on part of the vendor before action to recover the purchase-money; readiness and an offer to deliver are enough.6 - When the contract is silent as to place, the "store of the merchant, the shop of the manufacturer or mechanic, and the farm, barn, or granary of the farmer, at which the commodities sold are deposited or kept, must be the place where the demand and delivery are to be made."7 If a tender of specific goods be not on the day appointed, the promisor is liable to a suit without demand.8 - Parol evidence is admissible to show what was the place of delivery agreed upon by the parties, such incident being collateral to the contract.9 When the day of payment falls on Sunday, a tender on the succeeding Monday is sufficient.1 - When the tender is complete in accordance with the contract, and is specific, the prevalent opinion, as we will see, is that the title in the goods rests in the creditor, and he may maintain trover for them.2 sec 991. Where the time of tender is not designated by the contract, it is incumbent, as we will presently see, on the party on whom the right of appointing the place falls, to give reasonable notice of the place designated, so that the other party can be in attendance.3 If there be no such notice, and if there is no demand by the party entitled to the goods, then the other party is not in default by omitting to tender them.4 And a designation of place is required in all cases in which the contract leaves the place open.5 While, as we have already seen, the debtor, in order to make a tender, is not required to follow the creditor into a foreign state,6 the fact that the creditor lives in a foreign country does not relieve the debtor from the duty of applying to him for instructions as to the place of delivery, or, if no such instructions are given, of notifying him of a proposed tender.7 But when a contract made in one state is to be performed in the same state, the promisor is not required to perform the contract in a foreign state to which the promisee may have moved.8

Must be unconditional Goods must exactly correspond with description and be merchantable by local law If delivered at time and place fixed, this is sufficient.

1 Veazy V. Harmony, 7 Greenl. 91; Leballister V. Nash, 24 Me. 316; Bates V. Churchill, 32 Me. 31; Barney V. Bliss, 1 D. Chip. 399; Newton V. Gal-braith, 5 Johns. 119. A tender of part of the goods is inadequate. Russell V. Nicoll, 3 Wend. 112; Roberts V. Beatty, 2 Pen. & W. 67.

2 Ibid.; Vance V. Bloomer, 20 Wend. 200; Dula V. Cowles, 2 Jones, N. C. 454.

3 See supra, sec 977.

4 Robinson V. Batchelder, 4 N. H. 40.

5 See supra, sec 898 et seq.

6 See supra, sec 869 et seq.; and see, also, Wh. Confl. of L. sec 334 et seq.

7 Supra, sec 220, 607, 869. As to merchantability, see supra, sec 223.

8 Supra, sec 871 et seq.; Selby V. Eden, 3 Bing. 611; Fayle V. Bird, 6 B. & C.

531; Savary V. Goe, 3 Wash. C. C. 140; Gilmore V. Holt, 4 Pick. 258; South-worth V. Smith, 7 Cush. 391; Case V. Greene, 5 Watts, 262; Zinn V. Rowley, 4 Barr, 169; see Haynes V. Thom, 28 N. H. 400; Curtiss V. Greenbanks, 24 Vt. 536; Miles V. Roberts, 34 N. H. 245.

9 Robbins V. Luce, 4 Mass. 474; Jew-ett V. Bacon, 6 Mass. 60; Lamb V. Lathrop, 13 Wend. 95.

10 Supra, sec 872-3; infra, sec 991; Co. Litt. 210 a; Leake, 2d ed. 853; Cranley V. Hillery, 2 M. & S. 120; Allshouse V. Ramsay, 6 Whart. 331; Howard V. Miner, 20 Me. 325; Smith V. Smith, 2 Hill, 351. Mr. Greenleaf (EV. sec 611) doubts whether, when the creditor is out of the state, the debtor has a right to fix a place of delivery. See on this point supra, sec 872, 873; infra, sec 991.

1 Supra, sec 871 et seq.

2 Smith V. Loomis, 7 Conn. 110, and see cases cited supra, sec 871.

3 Gilmore V. Holt, 4 Pick. 258; South-worth V. Smith, 7 Cush. 391; Case V. Green, 5 Watts, 262; Smith V. Loomis, 7 Conn.110.

4 Nixon V. Bullock, 9 Yerg. 414; Miller V. McClain, 10 Yerg. 245; see Roberts V. Beatty, 2 Pen. & W. 63.

5 Supra, sec 980.

6 Hunter V. Wetsell, 84 N. Y. 549.

7 2 Ch. on Cont. 11th Am. ed. 1201, citiug Dunn V. Marston, 34 Me. 379; Miles V. Roberts, 34 N. H. 245; McKil-lip V. McKillip, 8 Barb. 552; Lobdell V. Hopkins, 5 Cow. 518; Vance V. Bloomer, 20 Wend. 196; Rice V. Churchill, 2 Denio, 145; Barr V. Myers, 3 W. & S. 295; Boswent V. Frank-berger, 15 Ill. 508; see supra, sec 871, for other cases.

8 Aldrich V. Albee, 1 Greenl. 120; Grieve V. Annin, 1 Halst. 461; Hamilton V. Eller, 11 Ired. 276; Mingus V. Pritchett, 3 DeV. 78; Sorrell V. Craig, 8 Ala. 566; supra, sec 881. As to demand see, further, supra, sec 575, 616. See to same effect Brown V. Berry, 14 N. H. 459; Gilman V. Moore, 14 Vt. 457; Bronson V. Wiman, 4 Selden, 182. In Appleton V. Hogan, 9 B. Mon. 69, V. was shown to have agreed to deliver to P. a boat load of corn at Louisville as soon as the water permitted the boat to land. The place of delivery under such circumstances was held to be V.'s boat.

9 Supra, sec 660-1, 910; Wh. on EV. sec 969, 1026; Wyman V. Winslow, 2 Fairf. 398; Miles V. Roberts, 34 N. H. 245; Musselman V. Stoner, 31 Penn. St. 265.