Page:The American Cyclopædia (1879) Volume XV.djvu/668

 G38 TENDER of D'Alombcrt. (See ALEMBERT.) In 1726 she was arrested on a charge preferred against her in the will of La Fresnay, one of her many lovers, who had killed himself in her house, of having sought to destroy him ; but the charge fell to the ground. After her speedy release she showed greater discretion, and confined her- self more exclusively to her associations with Fontenelle, Montesquieu, and other scholars who attended her receptions, which were among the first of the kind in France. She published Lea memoires du comte de Gomminges (1735) ; Le siege de Calais, a historical novel (2 vols., 1739-'40) ; and Les malheurs de V amour (1747). Her correspondence with her brother, the car- dinal, was published in 1790, and Lettres au due de fiichelieu in 1806. Her works have frequently been published together with those of Mine, de Lafayette. One of the best edi- tions is by Jay and Etienne (5 vols., Paris, 1825). See Memoires secrets de Mme. de Ten- cm, by the abb6 Barth&emy (Grenoble, 1790). TENDER, in law, an offer to perform an act, for the performance whereof one person is bound to another. The obligation, and so the offer, may be to pay money or to deliver spe- cific articles. If the tender be of money, it is effectual only when the demand is one of money, and is definite in amount, or is capa- ble of being made so. Thus, a tender cannot be pleaded as a defence to an action upon a contract, unless the contract be one for the payment of money, as for rent ; nor to an ac- tion for a tort, as for assault and battery. In short, wherever the claim is for unliquidated damages, the general rule is that no tender is admissible. In some of the United States, however, cases of involuntary trespass form an exception, founded partly on usage and partly on express statutory provisions. A tender may be by the defendant in person, or by a third person at his request ; and it should be made to the creditor personally, or to some one authorized by him to receive the money. At common law, a tender must be made on the very day the money is due, if that day be made certain by the contract. But the statutes and usages of the states generally permit the tender to be made after that day, if before the action is brought ; and in some it may be made after the action is brought. Tender is gener- ally not good if made before the debt is due, but may in some cases be so if it includes in- terest up to the day of maturity. A tender of money is not complete without production and offer of the money, unless the creditor express- ly or impliedly waives the production. Thus it is said not to be enough in a plea of tender, if the plaintiff did not object to receive the money, for the defendant to prove that he had the money in his pocket, and said to the credi- tor that he had it ready for him, and asked him to take it. He ought to have produced and offered the money specifically. What amounts to a waiver on the part of the credi- tor is a nice if not difficult question. It seems from the cases that the creditor may not only waive the actual production of. the money, but the actual possession of it in hand by the debt- or. The debtor is not bound to count out the money if he has it and offers it. The tender must be made without any condition that the creditor may with good reason object to. A demand of a receipt in full of all demands has often been held to invalidate a tender; not so much because a receipt was asked for, as be- cause part was offered in full payment. And it seems that a debtor would lose the benefit of a tender if he should accompany it with a demand of a receipt for the sum that he pays, and because it was refused should retain the money. Tender of a larger sum than is due, with a request of the change or the balance, is not good ; but a refusal of the money offered, for reasons distinct from the manner in which the offer is made, as for the insufficiency of the sum or the like, is a waiver of all objec- tion to the form of the tender. The tender should be made in money made lawful by statute. A tender of good and current bank notes is good if no objection is made on the ground that they are not money. The effect of a tender will be destroyed if the creditor can show a subsequent demand by him of the proper fulfilment of the contract at the proper time, and a refusal by the debtor. Tender does not bar a debt as payment would, but rather establishes the liability of the defen- dant; for, in general, he is liable to pay tho sum which he tenders whenever he is required to do so. But the tender stops the recovery of damages or interest for delay in payment, and gives the defendant subsequent costs, pro- vided the plaintiff recovers nothing beyond the sum tendered. As in sales the property in chattels does not pass while any necessary act remains to be done, so if there be an obliga- tion to deliver those articles, it may be said as a general rule that the obligation is not dis- charged by tender so long as anything is left undone which would prevent the property from passing under a sale. Chattels tendered, therefore, should be separated and distinguished from any others, and not be so mingled with others that are not to be delivered that they cannot be separately identified. The tender of goods may be made to an agent or by an agent, and must be equally unconditional as if of money ; and if the agent of the deliverer has orders to deliver the chattels to the receiver only if he will cancel and deliver up the con- tract, this is not a tender, although tho agent had the chattels at the proper time and place. Generally, if no time or place be specified, chat- tels are to be delivered where they were at the time of the contract, unless collateral circum- stances designate a different place. If the time be fixed, but not the place, it will be presumed that the deliverer was to bring the articles to the receiver at that time ; and for that purpose he must go with the chattels to the residence or place of business of the receiver, unless