and tendered treasury certificates of the State in payment of said 'debt. Cox refused to accept the certificates as payment, and Ramsey asked for a rule that Cox accept the certificates, and, upon a peculiar statute, the court ordered the rule, but held that outside of the particular statute the certificates were not good as a tender. Where bank, or treasury notes, circulate as money, though not a legal tender, an objection that it is not a legal tender money is deemed to be an objection of form, and is waived if not specially made, or if there be objections upon other grounds.&

In order to effectually invalidate a tender or to take from an offer to pay, its effect, by objection to the medium or currency, and not to the amount, it is necessary that such an objection be stated at the time of the tender, as the cause of objection; and if this be not done, objection in that respect will be waived, and cannot afterwards be taken advantage of; 85 thus the want of authority in an agent to make a tender cannot be alleged unless the tender be objected to upon that ground at the time. It is a rule that if a tender be refused for specific objections, that afterwards no other can be relied upon. Thus in Michigan it is said to be "a well established principle that an objection made at the time of tender precludes all others, and if that be not wellgrounded, the tender will be held good; but this applies only to objections that could be obviated, and not to a tender made before a debt is due.88 An offer of depreciated bank-notes, unaccompanied with an explanation is in effect an offer to compromise, and not a good tender.89 In the B. & A. Mortgage Co. v. Tibballs,90 the plaintiff,

87

84 Cooley v. Weeks, 10 Yerg. 141; Snow v. Perry, 9 Pick. 539; Ball v. Stanley, 5 Yerg. 199; Brown v. Simons, 44 N. H. 475; Seawell v. Henry, 6 Ala. 226; Williams v. Rono, 7 Mo. 555; Brown v. Dysinger, 1 Rawle, 408; Brown v. Saul, 4 Esp. 267; Wright v. Read, 3 T. R. 554; Wheeler v. Knaggs, 8 Ohio St. 172; Holmes v. Holmes, 12 Barb. 137.

85 Palgloss v. Oliver, 2 C. & J. 15. 86 Lampley v. Weed, 27 Ala. 621.

Maynehan v. Moore, 9 Mich. 9; Stokes v. Recknagle, 38 N. Y. 368; Keller v. Fisher, 7 Ind. 718; Perkins v. Dunlap, 5 Greenlf. 268; Hall v. Peters, 7 Barb. 331; Wright v. Reed, 3 Tenn. 554; Carman v. Pultz, 21 N. Y. 547; Bull v. Parker, 2 D. U. S. 345.

88 Mitchell v. Cook, 29 Barb. 243.

Newberry v. Trowbridge, 13 Mich. 263.

90 Supreme Court of Iowa, decided April 25, 1884. Reported in full in N. W. Rep. of May, 24, 1884.

a mortgagee, residing in New York City, sends to a bank in Iowa a note for collection. The defendant called at the bank and paid the note, partly in currency and partly by surrendering a certificate of deposit issued to him by the bank previously, for money deposited, and received his note. A few days subsequently, and without remitting the money to the plaintiff, the bank failed and made an assignment. In this action the plaintiff seeks to recover of defendant so much of said funds as were paid by certificate of deposit, on the ground that the bank had no right to receive the certificate in payment of the note, the court holds that the certificate was equivalent to money, and the bank had a right to receive it.91

92

6. Amount. The general doctrine is that the exact sum must be tendered; yet more than the exact amount is a tender, if there is no demand that the excess be returned as change, and the asking of change alone does not render a tender insufficient, unless objections are made on that account.94 The debtor must take care at his peril to tender enough.95 A tender is good if made as the whole amount due, and a party making no objections to the amount of the tender cannot afterwards set up that the tender was insufficient. 97 A tender of part of an entire demand is inoperative,98 yet a tender of less than the amount

91 From the opinion of the majority of the court Judge Reed dissents, holding that the certificate of deposit was only a negotiable promissory note of the bank and was not equivalent to money.

92 Dixon v. Clark, 5 C. & B. 365; Tracy v. Strong, 2 Conn. 659; Robinson v. Cook, 6 Taunt. 336; Betterbee v. Davis, 3 Camp. 70; Baker v. Gasque, 3 Strobh. 25; Putnale v. Sanders, 41 Vt. 66; Boyden v. Moore, 5 Mass. 365.

93 Wade's Case, 5 Coke, 114; Douglas v. 'Patrick, 3 Term 683; Dean v. James, 4 B. & Ad. 546; Bevans v. Rees, 5 M. & W. 306; Patterson v. Cox, 25 Ind. 261; Hubbard v. Chemango Bank, 8 Cow. 88; Thorpe v. Burgess, 4 Jur. 799.

94 Block v. Smith, 1 Ploke, 88; Codman v. Lubbock, 5 D. & R. 289; Sanders v. Graham, Gow. 121; Robinson v. Cook, 6 Taunt. 336; Betterbee v. Davis, 3 Camp. 70; Dean v. James, 4 B. & Ad. 546.

95 Helphrey v. Chicago R. R., 29 Iowa, 480. 96 Henwood v. Oliver, 1 Ad. & El. 409; Ball v. Parker, 2 Dowl. 345; Brown v. Owen, 11 Jur. 972. In Robinson v. Ferreday, 8 C. & P. 752, it was held that a tender was not vitiated by the person making it, saying, at the time of making it that it was all that the debtor considered was due; but if he offers the sum as all that is due, it is different.

97 Sheriff v. Hale, 37 Iowa, 174.

98 Smith v. Anders, 21 Ala. 782; Putnale v. Sander 41 Vt. 66.

due, without demand, will be sufficient as a tender unless objections be made to the amount, and it will relieve the party from liability for interest and costs, but will not prevent a recovery by the other party for the actual amount due.99 The tender of a gross sum upon several demands from the same creditor is good without designating the amount tendered upon each; 100 but such would not be good if there be several creditors, 101

The tender of an amount as the sum justly due by the conditions of a bond is good, although less than the penalty.102 The penalty of a bond is only nominally the debt, and the tender of an amount which, if paid, would fully satisfy the bond, is as effectual as a tender of the full amount of the penalty.10

In regard to the discrepancy in amount of tender and sum due, being a trifle, Chief Justice Parsons, in Boyder v. Moore,104 said: "In making payments it is sometimes not possible, from the value and divisions of current coin, to make the exact sum; if payment be made as nearly as it can conveniently be made, the fractional part of a small coin may be neglected: it is a trifle. When the court is satisfied that the party has tendered or offered the amount he believes to be the true amount, and when he offers to pay whatever amount the court may find to be due, a party is not to be turned out of court because he was unable to tender the exact amount. 105

7. Time.-A tender must be made accord

ing to contract.106 If the time falls on Sunday a tender on Monday is good,107 and it is a familiar rule that where a bill or note having days of grace, falls due, grace included, on Sunday, it is payable on Saturday; 10s but in ordinary contracts, where the element of

99 Hayward v. Munger, 14 Iowa, 516; Guengerich v. Smith, 36 Iowa, 587.

100 Thetford v. Hubbard, 22 Vt. 440. 101 Strong v. Harvey, 3 Bing. 304.

102 Tracy v. Strong, 2 Conn. 659.

103 Frazer v. Little, 13 Mich. 195; Spencer v. Perry,

18 Mich. 394.

104 5 Mass., 365.

105 Nesbit v. Hanway, 87 Ind. 400; Downing v. Plate, 8 Cent. L. J. 283.

106 Gould v. Banks, 8 Wend. 562; Dewey v. Humphrey, 5 Pick. 187; Day v. Lafferty, 4 Pick. 450; Larrimore v. Hornbaker, 21 Ind. 430.

107 Barrett v. Allen, 10 Ohio, 426; Stebbins v. Leawolf, 3 Cush. 137; Sands v. Lyon, 18 Conn. 18; Avery v. Stewart, 2 Conn. 69; Salter v. Burt, 20 Wend. 205.

108 Shepperd v. Spates, 4 Md. 400; Sanders v. Ochiltree, 5 Port. 73; Farnum v. Fowle, 12 Mass. 89; Barlow v. Planter's Bank, 7 How. (Miss.) 129.

grace is not recognized, the rule, by most opinions, is reversed; Sunday is not counted, and the performance, or breach, takes place on Monday, 109 Tenders must be made at a suitable hour of the day; 110 a tender before the proper time is no better than one too late; and especially so if drawing interest; 112 but some cases take the opposite view in regard to the effect of the interest; 113 yet it is good, certainly, if the amount due at maturity is tendered.114 If the creditor object to the time of tender, it is a waiver as to amount, and that is prima facie correct.1 An offer to tender at the time and place is no compliance with a contract. 116 A tender is valid and effectual if made at any time after a debt is due.117 A contract of sale provided for the delivery from the 15th to the 28th, and a tender of the mohey on the 28th was held to be too late; 118 but where stipulations say, on or before a certain date, a tender on that date will be good.119

115

8. Place. The tender must be made at the place agreed upon, but if there be no agreement in respect to place, then wherever the person authorized to receive payment can be found. 120 Thus, "Where an obligor," says an old author, "is to pay a sum of money or do a like thing with the obligee, on a certain day, but no place is set down where it shall be done, it must be done to the person of the obligee, wherever he may be, if he be infra quatuor maria." It is the duty of the debtor who owes money to seek his creditor, if he can be found within the State.122

,, 121

A

109 Salter v. Burt, 20 Wend. 205; Stryker v. Vanderbilt, 3 Dutcher, 68; Stebbins v. Leawolf, 3 Cush. 137; Corathers v. Wheeler, 1 Oregon, 194. But for cases holding that Saturday is the day, see Kilgour v. Miles, 6 Gill. & J. 268.

110 Sweet v. Harding, 19 Vt. 587. 11 Reed v. Rudman, 5 Ind. 409.

112 Saunders v. Frost, 5 Pick.267; Tellon v. Britton, 4 Halst. 120.

113 McHard v. Whitcraft, 3 Horr. & McH. (Md.) 85. 114 Eaton v. Emerson, 14 Me. 335.

115 Bradshaw v. Davis, 12 Texas, 336.

116 Hiatt v. Harris, 28 Ind.1379.

117 Thetford v. Hubbard, 22 Vt. 440.

118 Newby v. Rogers, 40 Ind. 9; Cook v. Gray, 6 Ind.

335.

119 Adams v. Dale, 29 Ind. 273.

120 Haldane v. Johnson, 20 Eng. L. & Eq. 498; Poole v. Tumbridge, 2 M. & W. 223; Hunter v. De Conte, 6 Cow. 228; Blingerland v. Morse, 8 Johns. 474.

121 Shepherd's Touchstone, 378.

122 King v. Finch, 60 Ind. 420; Gill v. Bradley, 21 Minn. 15; 2 Chitty on Cont. (11th ed.), 1069; Loge v. Ranney, 2 Wend. 532; Pomeroy v. Ainsworth, 22 Barb. 119.

The petition in this case contains six counts, each substantially the same. The suit is for the enforcement of six separate tax-bills against the property of defendants. In the first two the amount claimed is $16.10 each; in each of the last four $27.60. In each of these counts it is alleged that the Mastin Bank was a corporation, created and organized under the laws of Missouri, and that on the 3d day of August, 1878, said bank made a voluntary assignment for the benefit of creditors, to Kersey Coates; that the city of Kansas is a municipal corporation; that by ordinance it established Sewer District Number 123 and ordered a sewer to be built therein; that for the doing of said work a contract was duly entered into with one John Halpin, and he constructed said sewer in accordance with said ordinance and contract; that in accordance with the provisions of said city charter, tax-bills were issued against the property in said district to pay for the doing of said work; that the defendants Ridenour and Baker were the owners of six lots in said district, and that the several tax-bills sued on in said several counts were issued to said Halpin as charges against said lots so belonging to the defendants; that afterwards the said Halpin assigned said taxbills to the said Mastin Bank, and that the same have not been paid, and judgment on each is asked. The defendants in their answer admit the issue of the tax-bills and their assignment to the Mastin Bank as alleged in the petition and that the Mastin Bank made an assignment to Ker

123 Smith v. Smith, 2 Hill (N. Y.), 351. 124 United States v. Gurney, 4 Cranch. 333. 125 Crawford v. Paine, 19 Iowa, 172.

sey Coates in trust for all its creditors, that they are the owners of the several lots against which said tax-bills are issued and that they became indebted to the Mastin Bank in the amount of the several tax-bills. But for a defense thereto say that on August 3, 1878, and for a long time prior theret ey were the owners of the several parcels of real estate sought to be charged in said taxbills; that they were such owners on June 14th, 1878, the date at which said bank acquired said tax-bills and that on August 3, 1878, they had as partners on deposit in the Mastin Bank the sum of $194.30, and that the Mastin Bank on that date was indebted to them in said sum of $194.30 so deposited, and that said sum has not been paid to them in whole or in part. They allege that on August 3, 1878, said bank was and now is insolvent, and on said date made the assignment to said Coates as above mentioned. They allege that the property upon which these tax-bills are charged belongs to the defendants as partners. They ask that of the sum so deposited an amount equal to said tax-bills be set-off against the same, and that said tax-bills be cancelled. The petition was filed on May 8, 1880, and the answer was filed October 11, 1880. Afterwards, on June 16, 1881, this agreed statement of facts was filed:

"This is a suit to enforce certain tax-bills for building a sewer in Kansas City, Missouri, and the validity of the tax-bills is admitted, and also that the defendants are the owners of the lots sought to be charged, and were such on August 3, 1878. It is likewise admitted that the defendants had a deposit, as claimed in the answer, in the Mastin Bank at the time of its failure, and the only question to be determined is whether or not the defendants as a matter of law are entitled to the setoff as claimed. The ownership of Coates as assignee of the Mastin Bank, of the tax-bills sued on, is admitted, and that said bank, on August 3, 1883, was unable to pay what it then owed.

PRATT, BRUMBACK and FERRY,
Attorneys for Plaintiff.
KARNES and Ess,

Attorneys for Defendants."

On these pleadings and this agreed statement of facts the case was submitted to the court without a jury, and against the objections of the defendants the court declared the law to be for the plaintiff as follows: "On the pleadings and the agreed statement of facts the court must find that the sum due the defendants from the Mastin Bank cannot be set-off against the sum due on the special taxes or tax-bills sued on."

The defendants asked the court to declare the law as follows, which was refused:

"The defendants ask the court to declare the law to be, that upon the pleadings and agreed statement of facts, as filed in the cause the plaintiff cannot recover."

The court found the defendants not entitled to set-off their demand against the plaintiffs, and that there was due plaintiffs from defendants the

several sums sued for and interest, and gave judgment against defendants for said amounts with costs to be levied of the several lots against which the tax-bills issued.

After the assignment to Kersey Coates and on January 30, 1879, one of the days named by him for the allowance of claims, the said defendants, Ridenour and Baker, presented to him for allowance an account against said bank for $194.30, money deposited, and out or this they asked that the tax-bills sued on be deducted, and that the balance be allowed them. This the said assignee refused, and from the decision of the assignee the defendant appealed to the Circuit Court of Jackson county, and upon hearing in said Circuit Court the judgment of the assignee was affirmed and the whole amount of $194.30 was allowed against said assignee, but the court refused to deduct therefrom the amount of said tax-bills.

Afterwards, on January 20, 1882, the defendants in this cause filed a motion asking that the judgment on said tax-bills be set off against the judgment of allowance as aforesaid. Upon hearing of this motion it was agreed that the defendants were the owners of the real estate since January, 1875, and still were. The court denied the motion.

The necessary steps being taken, the cause is here by appeal.

The law as applicable in general to the case of the assignee of an insolvent bank suing a depositor who asks to set off what is owing to him as a deposit, or against what he owes, is declared, and the authorities examined in Smith, Assignee, v. Spengler, decided at the present term. The conclusion reached is that on reason and authority the set-off should be allowed.

One feature distinguishes the case at bar from that just referred to; there a promissory note was sued on; here certain special tax-bills. So Smith v. Spengler, though a strong authority in point, is not necessarily decisive of this case.

The law authorizing the issue of these tax-bills (Acts 1875 pp. 256-7) provides, among other things, that "As soon as the district sewer shall have been completed the city engineer or other officer having charge of the work shall compute the whole cost thereof and shall assess it as a special tax against the lots of ground exclusive of the improvements in proportion to the area of the whole district exclusive of public highways; and such officer shall make out a certified bill of such assessment against each lot of ground within the district in the name of the owner thereof; said certified bill shall be delivered to the contractor for the work who shall proceed to collect the same by the ordinary process of law, in the name of the city, to his own use, and in case of absent owners he may sue by attachment or by any other process known to the law, and every such certified bill shall be a lien against the lot of ground described therein, and shall bear interest at the rate of ten per cent. per annum from thirty days after the date of its issue, unless sooner offered to be paid

and if not paid or offered to be paid within six months after the date of issue then it shall bear interest at the rate of fifteen per cent. per annum until paid; and every such certified bill shall, on action brought to recover the amount thereof, be prima facie evidence of the validity of the charge against the property therein described and of the liability of the person therein named as the owner of such property. The city shall incur no liability for building district sewers except where the city is the owner of a lot of ground within the district, and in that case the city shall be liable for the cost of said sewer in the same manner as other property owners within the district.

It may be regarded as settled that no set off can be allowed in a suit for taxes for general or public purposes, though in some cases there is recognized a limitation to the rule as shown in Donelson v. Inhabitants of Colerain, 4 Met. 430; Concord v. Pillsbury, 33 N. H. 310. Public policy forbids the plea; the regular flow of the public revenues into the public treasury must be interrupted. And the taxes are not consided as debts arising out of any contract or dependent upon the consent of the individual citizen. Cooley on Taxation, p. 13.

Special assessments by municipalities such as these tax-bills sprang from, are upheld on the theory that the property against which the charge is made is so enhanced in value and its owner so specially benefited by the improvement that the assessment is not really a burden, whilst the public may be expected to derive enough advantage from the enterprise to justify its servants in ordering it.

The distinction between general and special taxes is clearly noted in Neenan v. Smith, 50 Mo. 525. Bliss, J., delivering the opinion of the court says: There is a broad distinction and one of universal recognition between this foundation upon which is based the right of general taxation for governmental purposes and that which supports the rights of local assessments. The authority to impose either is referred to the taxing power: but the object of one as giving authority widely differs from that of the others.

All taxation is supposed to be for the benefit of the person taxed. That for raising a general revenue is imposed primarily for his protection as a member of society both in his person and his property in general, and hence the amount assessed is against him to be charged upon his property, and may be collected of him personally. But on the other hand, local taxes for local improvements are merely assessments upon the property benefited by such improvements and to pay for the benefits which they are supposed to confer; the lots are increased in value or better adapted to the uses of town lots by the improvements, upon no other ground will such partial taxation for a moment stand. Egyptian Levee Co. v. Hardin, 27 Mo. 495; Emery v. San Francisco Gas Co., 28 Cal. 345.

In Sheehan v. Good Samaritan Hospital, 50 Mo.

155, and in other well considered cases in this and other States it is decided that property "exempted from taxation of every kind" is still liable for assessments for local improvements. In the case just cited, the court says: "The tax-bill here sued on is not regarded as a tax, but as an assessment for improvements, and is not considered as a burder but an equivalent or compensation for the enhanced value which the property derives from the improvements."

Is this a distinction without a difference? Some authorities without giving reasons in effect so hold. Dillon (Munic. Corp. Sec. 810) says: "The assessment is a tax levied by the corporation upon property to defray the expense of the improvement, and the suit to collect (though brought by the contracter under authority given for that purpose) is not the subject of set off or counterclaim."

Of the cases cited to support the doctrine announced in the section from which this quotation is made but one, Himmelman v. Spanagel, 39 Cal. 389, bears on the question of set-off. That was a suit "to recover an assessment for grading a street," and the question to be determined was "whether they (defendants) are entitled to set up, by way of counter-claim, the damages occasioned by the plaintiff and his assignor by their having deposited on the premises and an adjacent street a large quantity of earth while they were employed in grading the street." The court decided the question in the negative, and the learned judge who delivered the opinion, after giving the reasons why the alleged damages could not be set up as defentants claimed, added: "A further, and we think, a conclusive answer to defendant's position is, that the demand on which the action was brought constitutes according to the authority of the cases above cited a tax-a municipal tax-levied by the corporation upon certain property to defray the expenses of the improvement of a street adjacent to the property. The origin, obligatory force and whole nature of a tax is such that it is impossible to conceive of a demand that might be set-off against it, unless expressly so authorized by statute."

In many instances it has been decided that a set-off cannot be allowed in a suit by a municipality for the collection of a tax for general purposes or one appropriated to a particular use.

In Pierce v. City of Boston, 3 Met. 520, the city was sued for the wages due a school teacher, and asked to set-off against the demand taxes owing by plaintiff. The right to set-off was denied. The court saying that taxes do not arise from any contract, "do not partake of the nature of judgments;" "for the collection of them no right of action is given," nor can they be turned into judgments." Howard v. Town of Thetford, 41 Vt. 122, announces the same doctrine, supported by the same line of argument.

May it be inferred from these two decisions that if, in Massachusetts and Vermont, a tax could be

"turned into a judgment, it might be pleaded or not as a set-off?

Judge Dillon, in Sec. 810,supra, says, immediately following the passage within transcribed: "But although the property-owners are not privies or parties to such contracts, yet, to a certain extent, and in a substantial sense, the municipality is their agent."

When, as in this case, the municipality cannot become liable to the contractor who, from the first, must look alone to the lot owner and the lot for his pay, the municipality may, I think, be regarded as the agent of the lot owner, "in a substantial sense."

If the municipality is in any sense an agent in the transaction, the lot owner must, in some sense, be a principal.

When sued on a special tax bill, he may attack the contract, set against his liability damages from its negligent or imperfect performance, or entirely defeat a recovery by overthrowing the theory of benefits conferred. Creamer v. Bates, 49 Mo. 523; Corrigan v. Gage, 68 Mo. 541; Halpin v. Campbell, 71 Mo. 493.

The lien of a special tax bill has been treated by this court as being akin to the lien of a mortgage. Olmstead v. Tarnsey, 69 Mo. 396; Corrigan v. Bell, 73 Mo. 53; Keating v. Craig, 73 Mo. 507.

In Vance v. Corrigan, 78 Mo. 94, the chief object, it is said, of bringing the land owner into court, is "to enable him to contest the validity of the proceedings as a charge upon his property, and to discharge the lien, if he so desire, without the sale thereof."

Our statute of set-off is very comprehensive. Sec. 3867 Rev. Stat. provides that if any two or more persons are mutually indebted in any manner whatsoever, and one of them commence an action against the other, one debt may be set-off against the other, although such debts are of a different nature.

But it is insisted that there is no mutual indebtedness here, not only because a tax is not a debt. but also because no personal judgment can be rendered against defendants.

The tax-bill is made prima facie evidence of the defendants' liability as lot owners, the petition charges that they are so liable, the answer admits it, and in the judgment it is so found. If the judgment were general instead of special the defendants would not be more certainly or less certainly indebted than now, but in the one case, if they could not or would not pay, they might designate property to be sold to satisfy the execution (R. S. Sec. 2365) but in the other they have no such privilege, the property to be sold being specified in the judgment and execution. In this fact I find a reason for instead of against the claim to a right of set-off in this case.

Another sweeping provision for the allowance of set-off is Sec. 3870 Rev. Stat.: In all actions at law or other legal proceedings by any city against any person for the enforcement, collection or recovery