| Colo. | Apr 15, 1889
delivered the opinion of the court.
The tender made by Larsen to Breene upon the 28th day of November was by check of the latter for $7,000, certified by the Merchants’ & Mechanics’ Bank of Lead-ville. As Breene made no objection to the medium of the tender at the time, but refused to accept the check for the sole reason that it was insufficient in amount, he thereby waived all objection to the form in which the tender was made. Stokes v. Recknagel, 38 N. Y. Sup. Ct. 368; Whelan v. Reilly, 61 Mo. 565" court="Mo." date_filed="1876-01-15" href="https://app.midpage.ai/document/whelan-v-reilly-8005233?utm_source=webapp" opinion_id="8005233">61 Mo. 565. It is contended, however, that this check was insufficient in amount, and that for this reason the tender was not good; but the
The law of tender is based upon the principle that the debtor is at all times ready and willing to pay the amount which he acknowledges to be due, and therefore it would be unjust to allow the creditor to subject him to the payment of the costs and expense of a suit having in view the enforced payment of a debt which the debtor is willing to pay without suit. A valid tender does not discharge the debt, hut relieves the debtor from subsequent interest upon the demand and costs in case of suit. If the check tendered by Larsen had not been certified by the bank, it could only be treated as a conditional payment of the debt if it had been accepted by Breene; the implication of law, in the absence of an express contract to the contrary, being that it is only to be regarded as a payment of the debt if cashed, or unless loss be sustained by the drawer, from the laches of the holdei-, in which
Counsel in argument have attached considerable importance to the fact that Breene, upon hearing of the failing condition of the bank, procured the check, and presented the same for payment, and, upon payment being refused, commenced suit against the bank upon the .check. It is unreasonable to suppose that Breene changed his mind, and was willing to accept the check, upon learning of the failing condition of the bank, which he had refused to accept while the solvency of the bank was beyond question. From the evidence the court below found “that said Breene, in taking said check and commencing said suit against said Merchants’ & Mechanics’ Bank, was acting under the advice of counsel, and with the intention only of saving and preserving said sum of $7,000 for the benefit of him to whom the same should be awarded by the judgment of the court in the case, and that at the time he took said check and commenced said suit said Merchants’ & Mechanics’ Bank was known to be in a failing and insolvent condition.” This finding, which is clearly supported by the evidence, brings the case within the rule laid down in Atkinson v. Tabor, 7 Colo. 452. In that case money and securities on deposit in a bank were withdrawn by a party having a contin
The court committed no error in refusing to decree a cancellation of the deed of trust. There is some contrariety of opinion as to whether the tender made after the law day, or the day on -which the debt falls clue, operates as a release of the security in case the tender is pleaded' as a matter of defense; but when the party seeking the benefit of a tender comes into a court of equity asking for affirmative relief, it is. well settled that he must pay the debt, and no redemption of the incumbered property will' be decreed unless such payment be made. Cowles v. Marble, 37 Mich. 158; Tuthill v. Morris, 81 N.Y. 94" court="NY" date_filed="1880-06-01" href="https://app.midpage.ai/document/tuthill-v--morris-3611710?utm_source=webapp" opinion_id="3611710">81 N. Y. 94. Perceiving no error in the record the judgment must be affirmed.
Affirmed.