Sec 992

We have already seen that when no place is designated for the performance of a contract, the place of performance is to be inferred from the contract, taking into consideration all the pertinent extrinsic facts.9 It has also been seen that articles difficult to move are, as a rule, to be delivered at the place where they were deposited at the time of sale.1 In other cases it is incumbent on the debtor, if desirous of making a tender, to seek the creditor, if within the state, and request him to fix the place for delivery. At this place the tender should be made, if the goods are not too cumbrous to be moved.2 If the creditor refuses to appoint a place, or appoints an unsuitable place, the debtor may designate the place for delivery; and in this place, if suitable, tender may, after due notice, be made.3

Party fixing place should notify other party.

Designation required as to bulky articles.

1 Supra, sec 897.

2 Ch. on Cont. 11th Am. ed. 1211; Leballister V. Nash, 24 Me. 316; Cur-tiss V. Greenbanks, 24 Vt. 536; Smith V. Loomis, 7 Conn. 110; Nichols V. Whiting, 1 Root, 443; Des Arts V. Leg-gett, 16 N. Y. 582; see Wyman V. Wins-low, 2 Fairf. 398; infra, sec 993.

3 Howard V. Miner, 20 Me. 325.

4 Sergeant, J., Barr V. Myers, 3 W. & S. 299.

5 Chase V. Flanders, 2 N. H. 417.

6 Supra, sec 872-3, 990; Howard V. Miner, 20 Me. 325; Bixby V. Whitney, 5 Greenl. 192; Smith V. Smith, 25 Wend. 405; and cases cited supra, sec 990.

7 Bixby V. Whitney, 5 Greenl. 192; White V. Perley, 15 Me. 470.

8 Allshouse V. Ramsay, 6 Wheat. 331; see supra, sec 873, 990.

9 See supra, sec 871.

Sec 993

If a creditor to whom a tender of specific articles is made in performance of a contract refuses to receive the articles, while it is agreed that the contract is discharged by the tender, it has been doubted whether he obtains any title to the goods. - In a New Hampshire case it is insisted with much ability that no title passes by such a tender, though the contract is discharged.4 But the weight of authority is to the effect that a tender of goods, in pursuance of a contract, vests the property in the creditor, though he was absent at the time and did not accept the goods.5 Even if the debtor in such cases retains the goods, he does so, it is said, as the bailee of the creditor.6 - And if the contract requires the vendor to deliver the goods at a particular time and place, the performance of these conditions vests the title in the purchaser.7

Sec 994

A tender may not merely be a mode of stopping further increment of a debt, but it may be a prerequisite to establishing a duty. Thus a tender to a common carrier of a reasonable compensation may be necessary in order to impose on him a duty to carry a particular person or thing.1 And on a tender of the amount due on a pledge, trover may be maintained by the pledgor if the pledgee refuses to restore.2

Tender of goods may transfer title.

1 Supra, sec 872.

2 Bixby V. Whitney, 5 Greenl. 192; Howard V. Miner, 20 Me. 325; Goodwin V. Holbrook, 4 Wend. 377; Barr V. Myers, 3 W. & S. 299; Musselman V. Stoner, 31 Penn. St. 265; Mingus V. Pritchett, 3 DeV. 78.

3 Ibid.; 2 Greenl. on EV. sec 610; Aldricb V. Albee, 1 Greenl. 120; Miles V. Roberts, 34 N. H. 245.

4 Weld V. Hadley, 1 N. H. 295.

5 1 Swift's Sys. 404; Smith V. Loomis, 7 Conn. 110; Slingerland V. Morse, 8 Johns. 474; and other cases cited supra, sec 990.

6 Story on Cont. sec 1412; 2 Kent Com. Lect. 39, p. 509; Lamb V. La-throp, 13 Wend. 95.

7 Benj. on Sales, 3d Am. ed. sec 682 et seq. In Wheelock V. Tanner, 39 N. Y. 481, it was held that when a payment was to be made by the delivery of certain wagons, and the promisee was not ready to receive them at the time appointed, and they were consequently kept at his request by the promisor, a further tender of the wagons was unnecessary.

Tendermay be a prerequisite to establish a duty.