Shaw v. Sears

3 Kan. 242

• Court: Supreme Court of Kansas
• Decided: February 15, 1865
• Status: Published

Opinion

By the Court,

Bailey, J.

On the question presented by the record in this case, we think there can be but little difficulty.

The instructions prayed for claim for the party making the tender the right to malte' conditions in regard to it, and deny to the party accepting, the right to prescribe the conditions of his acceptance, while the whole tenor of the authorities, as we read them, is to the effect that a tender to be valid must be without conditions absolute. Thus in Greenleaf on Evidence, vol. 2, sec. 605, it is laid down that “it must 'also appear that the tender was absolute, for if it be coupled with a condition, as for example, if a larger sum than is due be offered and the creditor be required to return the change, or if the sutn be offered in full of all demands, or if it be on condition that the creditor will give a receipt or release, or if it be offered by way of boon with a denial that any debt is due ; or if any other terms be added which the acceptance of the money would cause the other party to admit, the tender is not good.”

The authorities seem to be unanimous to the same effect. We are therefore of opinion that the court below did not err in refusing to give the instructions prayed for, and that the judgment of that court must be affirmed.

All the justices concurring.