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this method is, that if the payment to be deducted is not equal
to the interest which has been added to the original sum, then a
part of this interest enters into the remainder, on which interest
is cast, and thus the creditor receives compound interest. A third
method is, to compute the interest on the principal sum from the
time when interest became payable to the first time when a pay-
ment, alone, or in conjunction with preceding payments with inter-
est cast on them, shall equal or exceed the interest due on the
principal. Deduct this sum and cast interest on the balance as
before. In this way payments are applied first to keep down the
interest, and then to diminish the principal of the debt, and the
creditor does not receive compound interest. This last method
has been adopted in Massachusetts by decision, and generally
prevails, {i)

One holding a note on which interest is payable annually or
semi-annually, may sue for each instalment of interest as it be-
comes payable, although the note is not yet due. (/) Al-

* 636 though it has been held that after * the principal becomes

due the unpaid instalments of interest become merged in
the principal, and must therefore be sued for with the principal,
if at all, (A-) the better reason is that the promises to pay the
principal and interest at different times are several and afford
distinct causes of action, (kk) ^ And if he allows the time to run
by without demanding interest, he cannot afterwards, in an action
on the note, recover compound interest, (l)

(/) Dean v. Williams, 17 Mass. 417; Jamieson, 5 T. R. 553. See also Town-
Fay V. Bradley, 1 Pick. 194; and see send v. Riley, 46 N. H. 300. And see
Connecticut v. Jackson, 1 Johns. Ch. 17; ante, p. * 620, note (c).
French v. Kennedy, 7 Barb. 452 ; Williams (fc) Howe i'. Bradley. 19 Me. 31.
V. Houghtaling, 3 Coweu, 87, note; Union {k/c) Sparhawk v. Wills, 6 Gray, 163;
Bank v. Kiudrick, 10 Rob. (La.) 51 ; Hart Andover Savings Bank r. Adams, 1 Allen,
V. Dorman, 2 Fla. 445 ; Jones v. Ward, 28.

10 Yerg. 160; Spires v. Hamot, 8 Watts (/) Hastings v. Wiswall, 8 Mass. 455

& S. 17; United States v. McLemore, 4 Ferry v Ferry, 2 Cush. 92; Doe v. War

How. 286; Story v. Livingston, 13 Pet. ren,'7 Greenl. 48, and Bennett's note

359; Wallace r. Glaser, 82 Mich. 190, Connecticut r. JacLson, 1 Johns. Ch. 13:

Ander.-ion v. Perkins, 10 Mont. 154. 3 ^'an Benschooter v. Law.son, 6 Johns. Ch

Randolph, Com. Paper, § 1497. 313 ; Attwood !•. Taylor, 1 Man. & G. 279 ;

(;) Greenleaf I'. Kellogg, 2 Mass. 568 ; Sparks v. Garrigues, 1 Binn. 152, 165;

Cooley y. Rose, 3 id. 221 ; Herries v. Leonard v. Adm'r of Villars, 23 111. 377.

1 Dulaney v. Payne, 101 111. 325, decided that, for this reason, a judgment for
unpaid instalments of interest obtained after the maturity of a note was no heir to
a separate action for the principal sum thereby secured.

750



CH. III.] DEFENCES. * 637

SECTION II.

OF PERFORMANCE.

Having treated of payment as the specific defence to an action
grounded on alleged non-payment, we will now speak of perform-
ance, generally, as the most direct contradiction and the most
complete defence against actions for the breach of contract.

To make this defence effectual, the performance must have
been by him who was bound to do it ; and whatsoever is necessary
to be done for the full discharge of this duty, although only inci-
dental to it, must be done by him. Nor will a mere readiness to
do discharge him from his liability, unless he makes that mani-
fest by tender or an equivalent act. (m) ^

* 1. Of Tender. «637

By the statutes of the United States, known as the Legal Tender
Acts, the promissory notes of the United States are made a legal
tender. After much conflict and some fluctuation, these acts
were held by a majority of the Supreme Court of the United
States (the Chief- Justice and three side justices dissenting) con-
stitutional and valid as applied to contracts made before their
passage : the dissenting justices holding them valid only as to



(m) Thus, if a tenant by deed cove- debtor would secure him a part by giving
nants to pay rent in the manner reserved him certain promissory notes. The plain -
in the lease, but no place of payment is tiff never applied for the notes, nor did
mentioned, the tenant must seek out the the defendant ever tender them, but he
lessor on the day the rent falls due, and was ready to give them if they had been
tender him the money. It would not be applied for. The plaintiff afterwards sued
suiBcient that he w'as on the pTemises the defendant on the original cause of ,
leased, at the day, ready with the money action, and the defendant relied u])on the
to pay the lessor, and that the latter did agreement to compound. Held, that tho
not come there to receive it. Haldane v. defendant should have offered the plain-
Johnson, 8 Exch. 689, 20 Eng. L. & Eiq. tiff the notes, and that as he had not, tho
498. And see Poole v. Tumbridge, 2 M. plaintiff was not barred from his action.
& W. 223; Shep. Touch. 378; Rowe v. See Sovvard v. Palmer, 2 J. B. Moore,
Young, 2 Brod. & B. 165. In Cranley v. 274 ; Keay v. Wlnte, 1 Croinp. & M. 748,
Hillary, 2 M. & S. 120, the plaintiff had that a tender may be dispensed with under ,
agreed with the defendant, his debtor, to certain circumstances See also Ea.stman \
release him from the whole debt, if the v. Rapids, 21 Iowa, 590 '



1 But a statement that a tender will not be accepted makes actual tender unneces-
sary as a condition precedent to a right of action. Veeder r. McMurrav, 70 la. 118;
Duffy V. Patten, 74 Me. 396 ; McDonald v. Wolff, 40 .Mo. A pp. 30-J ; I'ost v. (iarrow,
18 Neb. 682; Lawrence v. Miller, 86 N. Y. 131. See also Mathis v. Thomas, 101
Ind. 119; Potter v. Taggart, 54 Wis. 395.

751



*637



THE LAW OP CONTRACTS.



[part II.



contracts made after their passage, on which point the court was
unanimous, {min) ^ The same court held that a note payable in
specie could not be satisfied against the will of the holder by a
tender of " legal tender" notes, (r/m)

If the tender be of money, it can be a defence only when made
before the action is brought, {n) and when the demand is of money,
and is definite in amount or capable of being made so. It seems
to be settled that a tender may be made to a quantum meruit
although once held otherwise ; (o) but, generally, where the claim



(mm) Knox v. Lee, and Parker v.
Davis, 12 Wallace, 4.t7. ^jee also Mary-
laud v. Railroad Co. 22 Wall. 105.

(/««) Treliilcock v. Wilson, 12 Wallace,
687.

(n) Bac. Abr. Tender (D) ; Suffolk
Bank v. Worcester Bank, 5 Pick. 106.
And in Hume v. Peploe, 8 East, 168, it
was held, that a plea of tender after the
day of pai/ment of a bill of e.xchange, and
before action bromjhl, is not good, though
the defendant aver that he was always
ready to pay from the time of the tender,
and that the sum tendered was the irhole
moneij then due, owing, or payable to the
plaintiff in respect of the bill, with luter-
est from the time of tiie default for the
damages sustained by the plaintiff by rea-
son of the non-performance of the prom-
ise. And Lord E/Jcnhorough said . " In
strictness a plea of tender i.s applicable
only to cases where the party j)leading it
has never been guilty of any breach of
his contract ; and we cannot now suffer a
new form of pleading to be introduced,
different from that which iia^* always pre-
vailed in this case." And per Lnicrence,
,J. ■ " This is a plea in bar of the plaintiff's
demand, which is for damages ; and there-
fore it ought to show upon the record that
he never had any such cause of action,
but here the plea admits it." So in Poole
V. Tumbridge, 2 M. & W. 22."}, where the
defendant, tiie acceptor of a bill of ex-
change, pleaded that, after the bill became
due, and before the commencement of
the suit, he tendered to tlie plaintiff the
amount of the bill, with interest froTn the
day when it became due, aud that he had
always, from the time when the bill became
due, been ready to pay the plaintiff the
amount, with interest aforesaid ; the court
held the plea bad on special demurrer.
Aud Parke, B., said : " I have no doubt



this plea is bad. The declaration states
the contract of the defendant to be, to
pay the amount of the bill on the day it
became due, and that promise is admitted
by the plea. It is clearly settled that an
indorsee has a right of action against the
acceptor by the act of indorsement, with-
out giving him any notice; when a party
accepts a negotiable bill, he binds him-
self to pay the amount, without notice, to
whomsoever may happen to be the holder,
and on the precise day when it becomes
due ; if he places himself in a situation of
hardship from the ditiiculty of tiiuling t)Ut
the hohler, it is his own fault, it is also
clearly settled that the meauiug 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 so far as he was able, the
other party refusing to receive the money.
Hume c. 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." And see to the same
point, City Bank u. Cutter, 3 Pick. 414;
Dewey v. Humphrey, 5 id. 187. The case
of Johnson o. Clay. 7 Tauut. 486, if cor-
rectly reported, is not law. Per Parke,
B., in Poole v. Tumbridge, xupra.

(y) Tins was settled in the case of
Johnson c. Lancaster, Stra. 576 The
report of that ca,se is as follows . " It wiis
settled on demurrer, that a tender is
])leadable to a quanfum meruit, and said to
have been so held before in B H 10 W .3 ;
Giles V. Hart, 2 Salk. 622 " In reference
to this case of Giles v Hart, the learned
reporters, in a note to Dearie v Barrett,
2 A. & E. 82, .say . " In Johnson c. Lan
caster this case is cited from Salkeld : and
it is said to have been there decided that a



1 In Juillard v. Greenman, 110 L^. S. 421, the Supreme Court held that Congress
has power to make notes legal tender in time of peace as well as in time of war All
the judges held that the case was within the principle of the earlier cases, and all
excepting Justice Field expressed the opinion that those cases were correctly decided.

752



CH. III.]



DEFENCES.



638



is for unliquidated damages, it has been * held in England, * 638
very strongly, that no tender is admissible, (p) In this
country cases of accidental or involuntary trespass form an excep-
tion ; in part by usage, or by an extension of the principle of the
21 Jas. I. c. 16, or express statutory provision, (q) This seems to be
settled in some States, and would, we think, be held generally. A
tender may be pleaded to an action on a covenant to pay money, (r)
A plea of tender admits the contract, and so much of the dec-
laration as the plea is applied to. ^ It does not bar the debt, as
a payment would, but rather establishes the liability of the
defendant ; for, in general, he is liable to pay the sum which he
tenders whenever he is required to do so. (s) But it puts a stop



teuder is pleadable to a quantum meruit;
but that does uot appear from the report
in Sulkeld, aud the report in 1 Lord Ray-
mond, 255, states a contrary doctrine to
have been laid down by Holt, C. J , and is
cited accordingly in 20 Viu.Ab. tit. Te.n-
der (S), pi. 6. I'he point is uot expressly
mentioned in the reports of the same case
in Carth. 413, 12 Mod. 152, Comb. 443,
Holt. 556." And see Cox v. Brain, 3
Taunt. 95.

(/>) Dearie v. Barrett, 2 A. & E. 62.
This was an action by a landlord against
a tenant for not keeping the premises in
repair, &c. The defendant moved for
leave to pay £5 into court by way of com-
pensation, under .statute 3 & 4 Will. IV.
c. 42, § 21, and also that it miglit be re-
ceived in court under a plea of tender
before action brought. Patteson, J., said-
" is there any instance of such a plea to
an action for unliquidated damages 1 "
'i'o which White, for the defendant, an-
swered : "A plea of tender is allowed to
a count on a quantum meruit. It was so
settled in Johnson v. Lancaster, I Stra.
576. Although the contrary was once
held in Giles r. Hart, 2 Salk. 622." Lord
Denman added: "It does not follow be-
cause you may plead a tender to a count
on a quantum meruit, that you may also
plead it to any count lor unli(juidated
damages." And see Green v. Shurtliff,
19 Vt 592.

(7) New York Rev. St. vol. ii. p. 553,
§§20, 22; Slack v. Brown, 13 Wend.
390; Ma.ss. Pub. St. c. 179, § 10; Tracy
V. Strong, 2 Conn. 659 ; Brown v. Neal,
36 Me. 407.



(r) Johnson v. Clav, 7 Taunt. 486, 1
J. B. Moore, 200.

(s) Cox f. Brain, 3 Taunt. 95 ; Hunt-
ington V. American Bank, 6 Pick. 340;
Bennett v. Francis, 2 B. & P. 550 ; Sea-
ton o. Benedict, 5 Bing. 31 ; Jones v.
Hoar, 5 Pick. 291 ; Bulwer v. Home, 4 B.
& Ad. 132; Stafford c. Clark, 2 Bing.
377. — The authorities and practice have
not been entirely uniform as to the effect
of a payment of money into court, either
in actions of assumpsit or tort. In as-
sumpsit the modern doctrine is, that pay-
ment into court, when the counts are gen-
eral, and there is no special count, is an
admission that the amount paid in is due
in respect of some contract, but not that
the defendant is liable on any particular
contract upon Avhich tlie plaintiff may
choose to rely. Kiugham v. Kobbins, 5
M. & W. 94 (1839); Stapleton v. Nowell, 6
M. & \V. 9 (1840); Archer c. Englisli, 1
Man. & G. 873 (1840) ; Charles v. Branker,
12 M. & W. 743 (1844); Kdan r. Dudfield,
5 Jur. 317 (1841). On the other hand, if
the declaration is on a special contract, and
it seems, on the same principle, if tliere are
general counts aud also a special count, the
payment admits the cause of action a.s set
forth in such special count, but does not
admit the amount of damages therein
stated. Stoveld c. Brewin, 2 B. & Aid.
116(1818); Guillod t\ Nock, 1 Ksp. 347
(1795); Wright 0. Goddard,8 A. & H. 144
(1838); Yate v. W^ilan, 2 Ea.st, 134 (1801):
Bulwer v. Horn, 4 B. & Ad. 132 (1 832) ; Ben-
nett i: Francis, 2 B. & P 5.50 (1801 ). In
Jones I'. Hoar, 5 Pick. 285 (1827), there
were three counts, one upon a promissory



1 Hence where a party pleads tender it is an admission that the other party is
entitled to iudgment for at least the amount tendered. Denver, &c. H. R. Co. v
Harp, 6 Col. 420; Monroe v. Chaldeck, 78 111. 429; Wolmer.stadt v. Jacobs, 61 la.
372 : Phoenix Ins. Co. v. Readinger, 28 Neb. 587. See also Wilson v. Doran, 39 IIuu,
88, and cases cited.

VOL. II. 48 "753



639



THE LAW OF CONTRACTS.



[part II.



* 639 * to accruing damages, or interest for delay in payment, and
gives the defendant costs. (Q It need not be made by the
defendant personally ; if made by a third person, at his request, it
is sufficient ; (ic) and if made by a stranger without his knowledge
or request, it seems that a subsequent assent of the debtor would
operate as a ratification of the agency and make the tender
good. (v). Any person may make a valid tender for an idiot ;
and the reason of this rule has been held applicable to a tender
for an infant by a relative not his guardian, (w) And if an
agent, furnished with monev to make a tender, at his own risk



note, one for goods sold and delivered,
and a third for money had and received.
The defendant brought in money gener-
ally " on account of, and in satisfaction of,
the plaintiff's damages in the suit." The
court thought this an admission of all the
contracts set forth in the declaration, but
under the circumstances the defendant
had leave to amend and specify that the
money was intended to be paid in upon
the promissory note. So in Huntington
V. American Bank, 6 Pick. 340 (1«28),
there were two counts, first, on an ac-
count annexed to the writ, for the plain-
tiff's services, claiming a specific sum ;
and, second, a count claiming a reason-
able compensation for his .services, and
alleging their value at $1,.")00. The
defendant paid $300 into court. The
principal (juestion was, whether the de-
fendant by paying the money into court
generally, without designating the count
on which it was paid in, admitted the con-
tract of liiring, as set out in the second
count, thus leaving no question for the
jury, e.'ccept tlie value of the plaintiff's
services. I'he court held tiiat it did. lu
Spalding V. Vandercook, 2 Wend. 431
(1829), the declaration contained a count
on a promissory note for $131, and also
the common money counts. The defend-
ant paid in $89, and sought to reduce the
amount of the plaintiff's demand to that
sum, by showing that the consideration of
the note failed. The court admitted evi-
dence to that point, notwithstanding the
plea. See Dounell r. Columbian Insurance
Company, 2 Sumner, 366 (1836). In
Elgar i^' Watson, I C;»r. & M. 494 (1842).
the action was assumpsit for use and
occupation, and for money lent. Coie-
ridge, J., held that a general payment by
the defendant acknowledged the plain-
tiff's right to recover xomethinrj on every
item in his bill of particulars, and it was
for the jury to assess the amount. — In
actions of lort the same general principles

754



seem to be applied. If the declaration is
sijerial, payment into court operates as an
admission of the cause of action, as set
out in the declaration. Thus, in actions
against railways for injuries received by
the negligence of the company, or in an
action against a town for a defect in the
highway, payment into court admits the
defendant's liai)ility as set out, and leaves
the question of damages for the jury.
Bacon v. Charlton, 7 Cush. 381 ; Perren v.
Monmouthshire Hailwav Co C. B. (1853),
20 Kng. L. & Va\. 258. " And see Llovd v.
Walkey, 9 C. &. P. 771. On the other
hand, if a declaration in tort is 'jeneral, as
in trover for a number of articles, pay-
ment into court would admit a liat)ility on
some cause of action, but not any ])articu-
lar article mentioned in the declaration.
Schreger v. Carden, II C. B. 581, 10 Eng.
L. & Kq. 513; Cook r. Hartle, 8 C. & P.
568; .Storv v. Finnis, 6 Exch. 123, 3 Eng.
L. & Eq. 548.

(t) Dixon V. Clark, 5 C. B. 365 ; Wais-
tell u. Atkinson, 3 Bing. 290; Law v. Jack-
son, 9 Cowen, 641 ; Coit v. Houston, 3
Johns. Ca.s. 243 ; Carlev r. Vance, 1 7 Mass.
389 ; I^aymond r. Bearuard, 12 Johns. 274 ;
Cornell V (Jreeu, 10 S. & K. 14. A ten-
der may be sufficient to stop tlie running
of interest, although not a technical tender
so as to give costs. Goff v. Hehohoth, 2
Cush. 475 ; Suffolk Bank v. Worcester
Bank, 5 Pick. 108.

((/) Cropp V. Hambleton, Cro. Eliz. 48 ;
1 Kol. Abr. 421 (K.).pl. 2. A tender may
be made by an inhatiitant of a school dis-
trict, on behalf of such district, without
any express nutliority : and this, if ratified
by the district, is a good tender. Kincaid
t'." Brunswick. 2 Fairf. 188.

(r) Per Best, C. J., in Harding r.
Davies, 2 C. & P. 78. And see Kincaid i\
Brunswick, 2 Fairf. 188; Read v. Gold-
ring, 2 M. & S, 86.

(ir) Co. Litt. 206 b ; Browu v. Dysinger,
1 Rawle, 408.



CH. HI.]



DEFENCES.



640



tenders more, it is good, (x) So a tender need not be made
to a creditor personally ; but it must be made to an * agent * 640
actually authorized to receive the money, (y) i If the
money be due to several jointly, it may be tendered to either,
but must be pleaded as made to all. (z) It perhaps is good if
made to one appointed executor, if he afterwards prove the
will, (a)

The whole sum due must be tendered, (&) as the creditor is



(x) Read v. Goldring, 2 M. & S. 86.
{</} Kirton v. Eraithwaite, 1 M. & W.
313; Goodlaud v. Blewith, 1 Camp. 477.
Tender to a merchant's clerk, at the store,
for goods previously bought there, is good,
although the claim had then been lodged
with an attorney for collection. Hoyt r.
Byrnes, 2 Fairf. 475; Mclneffe u. Wheel-
ock, 1 Gray, 600. And this although the
clerk had been forliidden to receive the
money, if tendered. Moffat v. Parsons, 5
Taunt. 307. Tender to the attorney of a
creditor who has the claim left for collec-
tion, is good. Watson v. Hetheringtou, 1
Car. & K. 36 ; Crozer v. I illing, 4 U. & C.
28, 6 Dowl & R. 132. And tender to such
attorney's clerk, at his office, the principal
being absent, may be good. Kirton v.
Braithwaite, supra. And see Wilmot v.
Smith, 3 C. & P. 453; Barrett v. Deere,
Moody & M. 200. See Bingham v. All-
port, 1 Nev. & M. 398. The debtor is not
obliged to tender for such attorney's letter.
Kirton v. Braithwaite, supru.

(z) Douglas V. Patrick, 3 T. R. 683.
So a tender of a deed to one of two joint
purchasers is sufficient. Dawson v.
Ewing, 16 S. & R. 371.

(«) 1 Eq. Cas. Abr. 319. But see Todd
V. Parker, Coxe, 45.

(b) Dixon u. Clark, 5 C. B. 365. In
this case a declaration in debt on simple
contract contained two counts, in each of
which £26 were demanded. The defend-
ants pleaded as to the causes of action, as
to £5, parcel, &c., a tender. The plaintiff
replied, that before and at the time of the
tender, and of the request and refu.sal
after jnentioned, and until and at the com-
mencement of the action, a larger sum
than £5, namely, £13 15.s-., part of tiie
money in the declaration demaiideil. was
due from the defendants to the plaintiff
as one entire sum, and on one entire contract
and liabilitji, and inclusive of, and not sep-
arate or divisible from, the .said sum of
£5, and the same being a contract and lia-



bility by which the defendants were liable
to pay to the plaintiff the whole of the
said larger sum in one entire sum upon
request; and that, after the last-men-
tioned and larger sum had become so due,
and while the same remained unpaid, the
plaintiff requested of the defendants pay-
ment of the last-mentioned and larger sum,
of which the .said £5 in the plea m'entionecl
was then such indivisible parcel as afore-
said, yet that the defendants refused to
pay the said larger sum ; wherefore the
plaintiff refused the said £5. Held, on
special demurrer, that the replication was
a good answer to the plea, and that, if there
was any set-off or other just cause for not
paying the larger sum, it should have come
by way of rejoinder. So in Boydeu v.
Moore, 5 Mass. 365, where the defend-
ant had brought into court wliat she sup-
po.sed justly due on the actiini, and the
costs up to the time, but ujjon the trial
it appeared that she had brought in too
little by forty-one cents, and the judge
directed the jury that they might still find
a verdict for the defendant, if tiie balance
appeared to them a mere trifle, and they
found accordingly, anew trial was granted
for the misdirection of the judge. And
Parsons, C. J., said : " It is a well-known
rule that the defendant must take care, at
his peril, to tender enough, and if he lioes
not and if the plaintiff rci)lies tliat there is
more due than is tendered, wliicli is trav-
ersed, the issue will be against the defend-
ant, and it will be the duty of the jury to
asse.ss for the plaintiff the sum due on the
jiromise ; and if it be not covered by the
money tendered, he will have judgment
for the balance. If the j^resenl dindion
of the judge had been in the trial of such
an issue arising on a plea of tender, we
cannot think the direction to be right.
The defendant cannot lawfully willdiold
from the plaintiff any money due to idm,
however small the sum, and if the ilefend-
ant intended to tender a.s nnich money as



1 A tender, however, to an attorney's clerk, in his office, who, saying that his
master is out and that he had " no instructions," refuses the monev, is good. Finch v.
Boning, 4 C. P. D. 143. — K.

755



6i2



THE LAW OF CONTRACTS.



[part II.



* 641 * not bound to receive a part of his debt. But this does not

mean the whole that the debtor owes to the creditor ; for he
may owe him many distinct debts ; and if they are perfectly sepa-
rable as so many notes, or sums of money otherwise distinct, the
debtor has a right to elect such as he is willing to acknowledge and

pay, and make a tender of tliem.^ And if the tender be

* 642 for more than the whole debt, it is valid ; (c) unless * it



the plaiutiif could claim, but made a mis-
take in her calculatiou, she must suffer
for her own mistake, and not the plain-
tiff; although the injury to him may 1)6
very small, and such as most men would



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