(dissenting).
I do not concur in the opinion of the majority and here state the reasons for my dissent.
In the case of Plasky v. Gulf Insurance Co., 160 Tex. 612, 335 S.W.2d 581, the Supreme Court, speaking through Justice Walker, held that the insurance company, in exactly the same position as is the appel-lee here, was liable for interest upon the entire amount of the judgment unless it pays, tenders or deposits in court the amount of its liability on the judgment.
The majority here correctly stated that nothing was paid to appellant or into court, so the only question is, Did appellee make a valid tender to appellant or his attorneys of all sums due by it as liability insurance carrier of the Hernandez brothers?
The word “tender” is usually held to mean that the thing offered must be actually produced and placed in such position that control over it is relinquished by tenderer so that tenderee may reach out and lay hold of it, and it must also be made at the place agreed upon. Kerr v. United States, 71 App.D.C. 222, 108 F.2d 585. In Richey v. Stanley, Tex.Civ.App., 38 S.W.2d 1104, no writ history, is found the following quotation from 38 Cyc. 143:
“In order to make a valid tender of either money or chattels, the thing to be tendered must be actually produced and offered to the party entitled thereto, a mere offer to pay being insufficient; and the tenderer must place the money or property in such a position that his control over it is relinquished for a sufficient time to enable the tenderee, if he so desires, to' reduce it to possession by merely reaching out and laying hold of the money or thing; and a person is not bound to say whether or not he will accept the money or thing until it is produced.”
See also, 41 Words and Phrases “Tender”. Tender is actual proffer of money as distinguished from a mere proposal or a proposition to proffer it. Caplan v. Shaw, 126 W.Va. 676, 30 S.E.2d 132. A tender imports not only readiness and ability to perform, but actual production of the thing to be delivered. Mark v. Rizzo, 6 Misc.2d 2, 162 N.Y.S.2d 633. A “tender” in the form of checks does not constitute legal “tender.” Sadler v. May Bros., La.App., 185 So. 81. To constitute valid and legal “tender” of money, the tenderer must relinquish possession thereof for sufficient time and under such circumstances as to enable the person to whom it is tendered to acquire possession thereof without special effort on his part. Universal Credit Co. v. Cole, Tex.Civ.App., 146 S.W.2d 222. A “tender” is an offer to pay a debt or discharge a duty, and in case of a debt, the offer to pay involves, generally, actual production of the money and the placing of it in- the power of the person entitled to re*717ceive it. Mayron’s Bake Shop, Inc. v. Arrow Stores, Inc., 149 Conn. 149, 176 A.2d 574. At common law, with respect to the payment of money or portable articles, where the time but no place of payment is specified, and no place of payment is fixed by law, the rule is that the tenderer must seek the tenderee and make a tender to him wherever he can be found, and a tender anywhere to the person of the tenderee is good. 86 C.J.S. Tender § 18, p. 567.
With these rules in mind, there can be no doubt that the procedure indulged in by appellee herein on or about June 13, 1960, did not constitute a valid tender in any sense of the word.
The majority opinion holds that appellant and his attorneys, by their silence, waived their right to thereafter complain that there was not a valid tender. In support of this holding the opinion cites Muldrow v. Texas Frozen Foods, Inc., 157 Tex. 39, 299 S.W.2d 275, and Littlejohn v. Johnson, Tex.Civ.App., 332 S.W.2d 439. These cases do not support the holding of the majority. The Muldrow case goes no further than to hold that a tax collector has no authority to accept a personal check in payment of taxes, and that a taxpayer always pays taxes by check at his own risk. It does hold that where a tax collector accepts a check in payment of taxes and the check is promptly paid the payment relates back to the date the check was received by the tax collector, and no penalties are due the State for not timely paying the taxes. Here no check was accepted by appellant, so the effect of acceptance of a personal check is not involved.
The Littlejohn case goes no further than to hold that where a check is refused for reasons other than medium of tender, the tenderee cannot later complain of the medium of the tender. This rule is well recognized, and the majority cite a number of • cases so holding, but here there was no check accepted and there was no refusal by the tenderee for any reason 'whatsoever. .It is only contended that when appellant received the letter written to him by appel-lee’s attorneys he did not answer but merely remained silent. I know of no decision in Texas holding that mere silence by a tenderee will thereafter preclude him from pointing out the many ways in which the offer was not a proper “tender,” and in my opinion such a holding would be a poor rule of law. Especially do I think this is so where the alleged tender is nothing more than a letter written by the tenderer to the tenderee.
Appellant contends that the so-called draft sent to Mrs. Lula George at Brownsville, Texas was neither a draft nor a check, but a mere inter-oifice memorandum. I agree with this contention. The memorandum was not an unequivocal order to any bank to pay to anyone any sum of money. The memorandum stated it was payable through the First National Bank in Dallas, but not by such Bank. The reading of the memorandum will bear out the fact that it really is meaningless, and would probably be understood only by the officers of appel-lee.
Appellee undertook to show that there exists a general custom among insurance companies to settle suits and pay off judgments by memorandums of this nature. Ordinarily, the burden of proof would be upon the party relying upon such a custom to establish it by a preponderance of the evidence, or, in other words, a question of fact not to be decided in a summary judgment proceeding. However, if this general custom was properly established by affidavit it could not control on the question of tender, in the light of all the peculiar facts in this case. Appellee, Great American Insurance Co. was not a party to the $81,-636.00 judgment. It was unknown and unheard of in the case by appellant and his attorneys. They were not even shown a copy of the liability insurance policy involved. They were not shown a copy of the memorandum sent to Mrs. George. Apparently, the only way appellant could see it, was to travel 56 miles to Brownsville. Even if he made this trip, Mrs. George, as *718the agent of appellee, had no instructions to show it to him. Her only instruction was to deliver it to him after he had executed and delivered to her the receipt which appellee was demanding. Furthermore, ap-pellee was demanding a release it was not entitled to as a prerequisite to the delivery of the memorandum.
I agree with the statement contained in appellant’s brief, reading as follows:
“The release which was demanded by the insurance company as a condition precedent to receiving the instrument which appellee calls a draft, contained various recitations which were either entirely outside the knowledge of appellant, or were untrue. Among these recitations are the following:
“(1) That the Great American Insurance Company was obligated to pay $25,000 under its policy of insurance, (neither the appellant nor his counsel had any knowledge relating to such policy and had never seen the same);
“(2) That the Great American Insurance Company had deposited $26,-088.17 with the Clerk of the Court ‘by draft,’ (no sum of money had been deposited with the District Clerk, and the instrument in question, as previously shown, was not a draft) ;
“(3) Baucum, by signing such release, would adknowledge receipt ‘of the sum of $26,008.17 to me cash in hand paid by the Great American Insurance Company of New York, the receipt whereof is hereby acknowledged/ (when in fact the appellant would have had to execute and deliver the release without having received anything in cash, and upon having executed the release, would have received only the instrument which appellee calls a draft).”
It is not shown even by affidavit, that under all the facts in this case there existed a general custom requiring appellant to execute this release before he could receive the memorandum which, in my opinion, was not a check, a draft, or any negotiable instrument known to the law.
I would reverse the judgment and remand the cause.