Servel v. Jamieson

GILBERT, Circuit Judge (after stating the facts as above). [1, 2] We think that the defendants stood strictly within their right in refusing the check which was tendered by Stitt. It is the well-settled rule that the tender of a check in payment of money is of no effect in cases where objection is made to that medium of payment. 38 Cyc. 146; Volk v. Olsen, 54 Misc. Rep. 227 , 104 N. Y. Supp. 415 ; Rumpf v. Schiff (Sup.) 109 N. Y. Supp. 51 ; Barbour v. Hickey, 2 App. D. C. 207, 24 L. R. A. 763; Collier v. White, 67 Miss. 133 , 6 South. 618 ; Aldrach v. Light, Power & Ry. Co., 101 S. C. 32, 85 S. E. 164 ; M oore v. Twin City Ice & Cold Storage Co., 92 Wash. 608 , 159 Pac. 779 , Ann. Cas. 1918D, 540. Nor should it be held that the defendants, by accepting a check for the payment made at the time of entering into the contract, bound themselves to accept a check at the final performance thereof, or waived their right to demand that the final payment be made in currency. The case is unlike Gunby v. Ingram, 57 Wash. 97 , 106 Pac. 495 , 36 L. R. A. (N. S.) 232, where a *894 series of payments of interest on a mortgage had been made by check, and it was held that the tender of a check for another installment was sufficient to prevent the exercise of an option to declare the whole deht due. In the present case the defendants might well accept a check for the first payment, for they parted with no right of possession of the property contracted to be sold, but when it came to the final payment and the delivery of the property to the plaintiff to be taken out of the state, they were entitled to demand that they be paid in money, and' not by a check upon a bank in a sister state. [3, 4] Time was expressly made of the essence of the contract, and by the agreement of the parties the contract was to be fully performed on September 29, 1917. This was not done, but there was testimony tending to prove that on September 29, after the lambs had been weighed at 8 o’clock in the morning, the defendants avoided the plaintiff’s agent and delayed meeting him for the final settlement until after 4 o’clock in the afternoon. A tender is waived where the person to whom it is to be made “in any way obstructs or prevents a tender.” 38 Cyc. 135; Hunt on Tender, § 52; Schaeffer v. Coldren, 237 Pa. 77 , 85 Atl. 98 , Ann. Cas. 1914B, 175. In view of these features of the evidence and the plaintiff’s offer of proof, from which the jury might have found that, but for such delay, the currency might have been obtained to make payment on that day, we think it was error to direct the jury to return a verdict for the defendants. The judgment is reversed, and the cause is remanded for a new trial.