While I withdraw my concurrence in the original opinion in this case as prepared by SAYRE, J., and in the conclusion there reached, and think that the rehearing should be granted, I do not wish to be understood as indorsing the views of the majority as set forth in the foregoing "per curiam" opinion.
The plaintiff executed to the defendant the note heretofore set out, and the question is: Did the payee have the right to charge for New York exchange if the note was paid at maturity at the People's Bank of Marion, or only the right to claim said exchange in case the note was not paid at maturity? The only provision for New York exchange appears as follows, at the bottom of the note: "With interest after maturity at eight per cent. per annum and exchange on New York, N.Y." The first part of the note calling for the amount to be paid is silent as to New York exchange as is that part of it designating the place of payment. Had the parties intended to provide for New York exchange, notwithstanding the note was paid at maturity, the note, either in setting forth the amount or designating the place of payment, should have included the words "with New York exchange," and it is manifest that the last quoted part of the note, to wit, "With interest after maturity at eight per cent. per annum and exchange on New York, N.Y.," contemplated the exaction of New York exchange only in case the note was not paid at maturity. I therefore think that, when the plaintiff tendered the Marion bank the face of the note at maturity, he complied with the terms of the note, and the payee had no right to exact New York exchange which was only contemplated as a penalty in case of a default in the payment of the note. This to my mind is the plain and unambiguous meaning and purport of the note which needed no explanation by parol testimony or otherwise, upon the theory that it presented a latent ambiguity. It was a question for the interpretation of the court without the aid of parol proof, and I do not think that the trial court erred in excluding parol evidence attempting to explain the same.
Upon the question of the sufficiency of the tender, I, of course, recognize the general rule that a tender must be unconditional; but there seems to be a contrariety of opinion as to whether or not a demand for the surrender of the evidence of the debt creates such a condition as to vitiate the tender, notwithstanding the amount tendered was all that was due. I think that the most salutary rule is the one as laid down in note 1 on page 645, vol. 2, Parsons on Contract (9th Ed.), as follows:
"Thus a tender to pay a note is not invalidated because subject to a condition that the note be given up. Strafford v. Welch, 59 N.H. 46. So in the case of a bond. Bailey v. Buchanan County, 115 N.Y. 297 [22 N.E. 155, 6 L.R.A. 562]. A tender of an amount due on a mortgage is good, though conditional on the execution of satisfaction of the mortgage. Halpin v. Phenix Ins. Co., 118 N.Y. 165 [23 N.E. 482]. So, also, Johnson v. Cranage, 45 Mich. 14 [7 N.W. 188]."
I do not think that our case of Commercial Fire Ins. Co. v. Allen, 80 Ala. 571, 1 So. 202, is necessarily in conflict with the present holding as the condition there was, not for a mere surrender of the evidence of the debt, but involved a demand for two receipts, "each expressing to be in full of certain claims of insurance." While the facts differentiate that case from this one, I do not wish to commit myself to the soundness of the proposition that demanding a receipt when the full amount due is tendered will destroy the tender.