If the contract called for services, the tender will consist of notifying the other party that the party is ready and willing to perform the services whenever required.

A tender must be made unconditionally. The party must simply offer what is due without calling for anything in return, not even a receipt or change, or it is not a good tender. In all cases the party making the tender should be accompanied by a competent witness.

A tender is held to be vitiated by coupling it with a demand for a receipt for the sum offered, unless, as is the case in a few jurisdictions, a statute exists which allows the demand for a receipt.1

$79. Acceptance of Tender

If a party keeps property or money that has been left with him after he has had a sufficiently long time to examine and refuse it, it amounts to an acceptance of the tender. If he refuses to accept, the party making the tender may take the goods or money away, and inform the other party that he will hold them subject to his orders; he will then keep the goods or money separate from his own property and ready at all times for the other party if he calls for them. If the money is deposited in a bank, it must be put in a separate account and not drawn upon.

REVIEW QUESTIONS

1. What is "tender" in legal phraseology? When must tender be made? What will excuse tender?

2.

To whom may tender be made, other than to the contracting party himself?

3. What is the rule as to the amount tendered?

138 Cyc. 154.

4. What constitutes acceptance of tender?

5. What kinds and amounts of money are "legal tender"?

6. What proofs should be secured of fact of tender? Can a receipt

for the amount paid be demanded?

7. If tender is refused, what may party making tender do?

CHAPTER XIV

JOINT AND SEVERAL CONTRACTS

§ 80. Contracts Made by More Than Two Parties

Very frequently we find contracts to which there are more than two parties; and these may be of two kinds, namely, what is known as a joint contract, in which all the parties on one side agree to be liable together for what is promised in the contract, each one being bound for the whole; or a several contract, where each of the parties agrees to be separately liable for his part. In some cases parties agree to be both jointly and separately liable, and then the person with whom the agreement was made has his choice of holding all of them liable together or each one liable separately.

It is unwise to become involved in a joint contract. Where the parties to a joint contract are liable:

I. Each is liable for the whole.

2. They must be sued together, not separately.

3. Where one dies he drops out, and the remainder are liable. If all died, the estate of the last decedent would be liable.

4. If one party is released, all are released.

Where the contract itself does not expressly state whether the parties are to be liable separately or all together for the whole contract, the court decides the nature of the contract from the probabilities of the case. If the promise by two or more is in the plural, the contract will be held joint, unless by the whole agreement the intention appears to hold them severally. For instance, the ordinary subscription agreement

is a several, not a joint, contract, and no one would imagine that each party who signed expected to be held liable for the whole amount to be raised.

Where, instead of being an agreement by several parties to do something, the agreement was to do something for the benefit of several parties, the test as to whether it is a joint or a several contract is whether the agreement has to be performed for all of them together, or whether it can be performed for each one separately. Wherever two or more are jointly to benefit by a contract, (1) all must join to bring suit on the contract; (2) if one dies the survivors have the legal right to sue. If it is a contract made to a corporation, the corporation will be regarded as one person; but all the members of a firm will have to join in any suit on such a contract.

If, on the contrary, it is an agreement to perform services for several persons as individuals, it usually amounts to a separate agreement with each of the individuals, and each of them may bring suit to enforce the agreement with the first party without paying any attention to the other persons.

Where there is more than one person on either or on both sides of a contract, it should be stated in the contract whether their obligation is joint or several, or whether the obligation to them is jointly or severally. To do so will save much trouble in enforcing the contract, as, if a person brings suit on a joint contract against one person only, he releases all the rest of them from their obligations; while, if it were a several contract, he may bring suits against one after the other until he has managed to collect the entire amount due him.

If one of the parties to a joint contract pays the whole obligation, he may collect from the others who were bound with him their proportion of the amount he had to pay.

Notes:

I. Where it was clearly not the intention of the parties to be liable for each other, the contract is several.

2.

Where their interest is identical and in the whole contract, it is joint.

3. Where they intend to be both jointly and severally liable on the whole contract, the contract is joint

and several.

4. A joint contract must be enforced by or against all of the parties to it.

5. A party to whom others are jointly and severally liable may sue all of them together, or he may sue one at a time.

REVIEW QUESTIONS

1. What is a joint contract? May more than two parties contract severally?

2.

What is the liability of a person who is party to a joint contract? 3. If two or more parties sign a bond beginning "We, the undersigned, are held and firmly bound," etc., what kind of contract is it?

4. A note begins, "Ninety days after date, we or either of us, promise to pay," etc. What kind of contract is it?

5. Distinguish between a joint and a joint and several contract. What may a person do who has been forced to pay the whole amount on a joint contract?

6.

7. Give examples of contracts that are either joint, several, or joint and several.