DUNFORD, District Judge.
Plaintiffs, a co-partnership, on June 7, 1950, entered into a Uniform Real Estate Contract with defendants to purchase real estate for which plaintiffs agreed to pay $18,000 as total purchase price, payable $7,000 down and enough, additional to make the payment up to $15,000 by December 15, 1950, and $3,000 as balance on June 7, 1951. Plaintiffs paid the $7,000 down payment but failed to make the additional payment on December 15th. Instead, they paid $2,000 on January 7, 1951, $1,000 on February 7, 1951, $1,000 on or about March 7, 1951, $1,000 on or about April 7, 1951, and $1,000 on or about May 7th, 1951, totaling $13,-000.00 paid. No payment was made after May 7, 1951. On July 19, 1951, defendants, by letter, notified the plaintiffs of their delinquency and that:
“Unless we receive all payments and the interest now due under the contract within 20 days from the date of this letter we will cancel the contract.”
Plaintiffs did not at the time of trial, nor have they since, complained that the period of twenty days fixed by the letter was, or is, unreasonable. In fact, on August 7, 1951, one day prior to expiration of the 20 days prescribed in the notice, the parties were in communication with each other by telephone, and in the evening of that date, plaintiffs mailed by registered mail to the defendants with return receipt requested, the following letter:
“August 7, 1951
“Mr. and Mrs. Donald M. White
“2833 Milcreek Road
“Salt Lake City, Utah
“Dear Mr. and Mrs. White:
[353]*353“We hereby wish to inform you that we have in our possession to be paid to you a check in the amount of $5,265.03, which is for payment in full for property at Salt Lake City, purchased by Inland Development Company. We have been instructed to surrender check to you upon your delivering a Warranty Deed for said property to Inland Development Company.
“If you will please come into our office, you can sign the Warranty Deed here.
“Very truly yours,
“INLAND REALTORS, INC.
“By-
No check was transmitted with this letter.
Defendant Donald M. White met the mail carrier, but refused to accept the letter. Because she was ill, he said nothing about it to defendant Lavine H. White who separately owned the subject land. This action whereby plaintiffs sought specific performance and damages was filed on August 16, 1951. Defendants’ answer and counterclaim were filed after several amendments of the Complaint and divers other special pleadings, on December 31, 1951. Defendants sought cancellation of the purchase agreement, forfeiture of all sums paid in, a judgment for restitution with treble damages and attorney’s fees.
The trial court found the issues in favor of the defendants upon the purchase contract and ordered it cancelled. It ordered further that the property be surrendered to defendants upon condition that within twenty days from April 18, 1952, the defendants pay to the plaintiffs in satisfaction of a lien impressed upon the real property by the court, the sum of $13,000, and the sale of the property and payment of that amount to the plaintiffs from the proceeds, in the event that the payment was not made by the defendants, and the quieting of defendants’ title if payment were so made.
The $13,000 has been properly tendered into, and is being held by, the court, awaiting the outcome of this appeal.
The crucial point raised by the appeal is the question of tender. Upon that question the Court found, and the finding is amply supported by the evidence, that on or about August 7, 1951, plaintiffs orally offered to pay the remaining balance due under the contract by check of the Inland Development Company; and mailed a registered letter to the defendants advising them that they were “ready to present” such check in the amount of the balance of principal and interest, and requested a deed from defendants to the property. That on August 7, 1951, the Inland Development Company had in its account to meet the suggested check of $5,265.03, (the balance due under the contract) only the sum of $91.99.
The trial court concluded that the offer of the check was not a tender and that hewing the only suggestion of performance by the plaintiffs within their twenty-day time limit, they had violated the terms of theii [354]*354contract entitling the defendants to cancellation of the contract under their counterclaim.
The plaintiffs contend that there was an actual tender by check of the amount due within the time fixed by the defendants, and the defendants having made no objection to the form of the tender, the court erred in holding that they had defaulted in their contract and were thus not entitled to have the defendants specifically perform.
It is true that a check for the amount due, presented within time, and when no exception is taken to the form of the tender, is a valid and legal tender of the amount due, but only when there are adequate funds in the account of the drawer to pay such check upon presentation in due course.
Hirsh v. Ogden Furniture & Carpet Co., 48 Utah 434, 160 P. 283, is cited by plaintiffs as authority for the rule that a check is good tender when not objected to, and is so even though transmitted by mail. Even a casual reading of that case, however, suggests that such is the law only when the check is good for payment upon presentation in due course. The court there favorably cited Wright v. John A. Robinson Co., 84 Hun 172; 2 N.Y.S. 463 where a check was tendered by mail, and Cleveland v. Toby, 36 Misc. 319, 73 N.Y.S. 544 where such mailing was held sufficient "in view that it was kept good,” and the court pointed out in applying the rule to the case béfore it: Page 440 of 48 Utah, Page 286 of 160 P.
“That on August 26th defendants' manager made a check for the amount aforesaid in favor of plaintiffs drawn upon a bank at Ogden, Utah, in which the defendant had sufficient funds to pay the check when presented, and on the 31st day of August enclosed and mailed the check in a letter addressed to plaintiffs at their place of business in Philadelphia.”
And
“the manager had tendered the attorney a check drawn on a local hank in which were ample funds to pay it for the amount of the draft.”
And again in stating that a plaintiff may waive his right to have the tender kept good, page 442 of 48 Utah, page 286 of 160 P., by payment into court, the court said:
“That is especially true where, as in this case, the defendant shows that the money was in the bank when the check was tendered and has constantly remained there to he paid on presentation of the check, and that it is in the bank at the time of trial.” (Emphasis added.)
The case of Cole v. Cole, 101 Utah 355, 122 P.2d 201
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DUNFORD, District Judge.
Plaintiffs, a co-partnership, on June 7, 1950, entered into a Uniform Real Estate Contract with defendants to purchase real estate for which plaintiffs agreed to pay $18,000 as total purchase price, payable $7,000 down and enough, additional to make the payment up to $15,000 by December 15, 1950, and $3,000 as balance on June 7, 1951. Plaintiffs paid the $7,000 down payment but failed to make the additional payment on December 15th. Instead, they paid $2,000 on January 7, 1951, $1,000 on February 7, 1951, $1,000 on or about March 7, 1951, $1,000 on or about April 7, 1951, and $1,000 on or about May 7th, 1951, totaling $13,-000.00 paid. No payment was made after May 7, 1951. On July 19, 1951, defendants, by letter, notified the plaintiffs of their delinquency and that:
“Unless we receive all payments and the interest now due under the contract within 20 days from the date of this letter we will cancel the contract.”
Plaintiffs did not at the time of trial, nor have they since, complained that the period of twenty days fixed by the letter was, or is, unreasonable. In fact, on August 7, 1951, one day prior to expiration of the 20 days prescribed in the notice, the parties were in communication with each other by telephone, and in the evening of that date, plaintiffs mailed by registered mail to the defendants with return receipt requested, the following letter:
“August 7, 1951
“Mr. and Mrs. Donald M. White
“2833 Milcreek Road
“Salt Lake City, Utah
“Dear Mr. and Mrs. White:
[353]*353“We hereby wish to inform you that we have in our possession to be paid to you a check in the amount of $5,265.03, which is for payment in full for property at Salt Lake City, purchased by Inland Development Company. We have been instructed to surrender check to you upon your delivering a Warranty Deed for said property to Inland Development Company.
“If you will please come into our office, you can sign the Warranty Deed here.
“Very truly yours,
“INLAND REALTORS, INC.
“By-
No check was transmitted with this letter.
Defendant Donald M. White met the mail carrier, but refused to accept the letter. Because she was ill, he said nothing about it to defendant Lavine H. White who separately owned the subject land. This action whereby plaintiffs sought specific performance and damages was filed on August 16, 1951. Defendants’ answer and counterclaim were filed after several amendments of the Complaint and divers other special pleadings, on December 31, 1951. Defendants sought cancellation of the purchase agreement, forfeiture of all sums paid in, a judgment for restitution with treble damages and attorney’s fees.
The trial court found the issues in favor of the defendants upon the purchase contract and ordered it cancelled. It ordered further that the property be surrendered to defendants upon condition that within twenty days from April 18, 1952, the defendants pay to the plaintiffs in satisfaction of a lien impressed upon the real property by the court, the sum of $13,000, and the sale of the property and payment of that amount to the plaintiffs from the proceeds, in the event that the payment was not made by the defendants, and the quieting of defendants’ title if payment were so made.
The $13,000 has been properly tendered into, and is being held by, the court, awaiting the outcome of this appeal.
The crucial point raised by the appeal is the question of tender. Upon that question the Court found, and the finding is amply supported by the evidence, that on or about August 7, 1951, plaintiffs orally offered to pay the remaining balance due under the contract by check of the Inland Development Company; and mailed a registered letter to the defendants advising them that they were “ready to present” such check in the amount of the balance of principal and interest, and requested a deed from defendants to the property. That on August 7, 1951, the Inland Development Company had in its account to meet the suggested check of $5,265.03, (the balance due under the contract) only the sum of $91.99.
The trial court concluded that the offer of the check was not a tender and that hewing the only suggestion of performance by the plaintiffs within their twenty-day time limit, they had violated the terms of theii [354]*354contract entitling the defendants to cancellation of the contract under their counterclaim.
The plaintiffs contend that there was an actual tender by check of the amount due within the time fixed by the defendants, and the defendants having made no objection to the form of the tender, the court erred in holding that they had defaulted in their contract and were thus not entitled to have the defendants specifically perform.
It is true that a check for the amount due, presented within time, and when no exception is taken to the form of the tender, is a valid and legal tender of the amount due, but only when there are adequate funds in the account of the drawer to pay such check upon presentation in due course.
Hirsh v. Ogden Furniture & Carpet Co., 48 Utah 434, 160 P. 283, is cited by plaintiffs as authority for the rule that a check is good tender when not objected to, and is so even though transmitted by mail. Even a casual reading of that case, however, suggests that such is the law only when the check is good for payment upon presentation in due course. The court there favorably cited Wright v. John A. Robinson Co., 84 Hun 172; 2 N.Y.S. 463 where a check was tendered by mail, and Cleveland v. Toby, 36 Misc. 319, 73 N.Y.S. 544 where such mailing was held sufficient "in view that it was kept good,” and the court pointed out in applying the rule to the case béfore it: Page 440 of 48 Utah, Page 286 of 160 P.
“That on August 26th defendants' manager made a check for the amount aforesaid in favor of plaintiffs drawn upon a bank at Ogden, Utah, in which the defendant had sufficient funds to pay the check when presented, and on the 31st day of August enclosed and mailed the check in a letter addressed to plaintiffs at their place of business in Philadelphia.”
And
“the manager had tendered the attorney a check drawn on a local hank in which were ample funds to pay it for the amount of the draft.”
And again in stating that a plaintiff may waive his right to have the tender kept good, page 442 of 48 Utah, page 286 of 160 P., by payment into court, the court said:
“That is especially true where, as in this case, the defendant shows that the money was in the bank when the check was tendered and has constantly remained there to he paid on presentation of the check, and that it is in the bank at the time of trial.” (Emphasis added.)
The case of Cole v. Cole, 101 Utah 355, 122 P.2d 201, while not upon all fours with the instant case, and while possibly of questionable authority upon the point of acceptance by the payee of check as payment of the obligation so that the accrual of interest upon the account thus sought to be paid is stopped, is, nevertheless, strongly persuasive to the conclusion that a check [355]*355is not a tender for the purpose of satisfying an obligation unless there are sufficient funds in the account of the drawer, in the depository upon which it is drawn, for payment in full upon its presentation in due course. In that case, the checks had been paid to the clerk- of the court and by him transmitted to counsel for the claimant, but were not presented for payment. Sometime later the maker notified counsel for the claimant that he had applied the money originally on deposit to cover the checks, to other uses. The court held the tender, because it had not been continued good, did not stop the accrual of interest upon the amount owing to the claimant during the period that there were no funds in the bank for payment on presentation. ■
Thus, in this case, it is clear that even though the obligor may have had other bank accounts, or other funds, which could have been changed into, or deposited with the bank upon which the check is drawn, (a situation contended for by plaintiffs but highly questionable upon the record) a tender by check is not good unless there are sufficient funds in the account against which it is drawn, and available for full payment of the check at any time upon its presentation in due course, and unless the check is then accepted by the obligee without objection.
A tender, to be good, must be free from any condition which the tenderer does not have a right to insist upon. 62 C.J. 670 Sec. 38: 86 C.J.S., Tender, § 27; Woods v. Dixon, 193 Or. 681, 240 P. 520; Radalj v. Union Savings & Loan Ass’n, 59 Wyo. 140, 138 P.2d 984, 141 P.2d 856. The plaintiffs here had no right to insist upon delivery of a deed as a condition to their making a tender of the purchase price.
A tender must be made in good faith and in such a manner as to most likely, under the' circumstances, benefit the creditor. K. & M., Inc. v. LeCuyer, Cal.App., 233 P.2d 569; 107 Cal.App.2d 710, 238 P.2d 28; 107 Cal.App.2d 845, 238 P.2d 33. In this case plaintiffs insisted upon the defendants meeting their convenience by cpming to their office to receive a tender of .a check which had insufficient funds to cover it.
Plaintiffs complain of the trial court’s failure to make Findings of Fact on “all material issues.” We have carefully examined these issues specified by the plaintiffs and are satisfied'that upon the record before us, and upon the holding of no tender, supra, if findings were made upon the asserted issues such findings would either of necessity be against the plaintiffs — in which cases the plaintiffs' could not complain of a failure — or would be wholly immaterial— in which cases a failure, even though erroneous, would not be prejudicial. Cook v. Cook, 110 Utah 406, 174 P.2d 434; Chamberlain v. Abeles, 88 Cal.App.2d 291, 198 P.2d 927; K. & M., Inc. v. Le Cuyer, supra.
Other specific assignments of error are answered in determining the foregoing assignments specifically noticed and disposed of.
[356]*356The judgment of the trial court is affirmed with costs to the defendants.