concurring in part and dissenting in part.
I concur in the court’s disposition of the issues pertaining to plaintiff’s employment contract. I disagree with its reversal of the district court’s ruling on the debenture issue.
The debenture issue had a bizarre procedural and substantive career in the district court. A recital of its unfortunately protracted history is necessary to an understanding of my position.
*582On September 20, 1963, Walter filed his complaint. He sought, inter alia, recovery of the face amount of the debentures for their full term (until 1970) plus interest on the theory that he had been invalidly discharged and thus deprived of the opportunity to realize the full benefit of the debentures.
On October 19, 1963, Mead sent Walter a notice of redemption.
On May 7, 1965, Mead filed its answer to the complaint and asserted “As a First Partial Defense” that Walter was estopped from asserting any claim under the debentures after the date of its redemption letter of October 19, 1963.
Whether this subject matter was properly labeled an estoppel, we need not decide. Under the terms of the Agreement, if there was a valid redemption attempt, it certainly was a defense to Walter’s debenture claim for the period beyond the redemption date, assuming a legal discharge. This possible partial defense to the complaint was, of course, based on action taken by Mead after the filing of the complaint. As new defense matter to which no responsive pleading was required, it had to be taken as denied. F. R. Civ. P. 8(d). The same partial defense was repeated in Mead’s amended answer filed in 1969.
The majority opinion points out that Walter did not raise the formal insufficiency of the redemption offer in his ■ pre-trial statement. But neither did Mead mention the redemption defense in its pre-trial statement of “Questions Presented” filed in January 1970. More to the point, Mead had the burden of proving its partial defense that there had been a valid redemption. Mead, not Walter brought this issue into the case. The majority would, apparently thrust this burden on Walter by requiring him to do what the Federal Rules do not require of him, viz., file *583an amended pleading challenging the validity of the redemption on the ground that there was. a formally defective tender.
A reading of the trial transcript shows an understandable emphasis on the issue of the validity of Walter’s discharge. It is understandable because this was the only issue presented by Walter and Mead did not shoulder its burden with respect to the partial defense of redemption.
Under my analysis of the case, particularly assuming a proper discharge, redemption was a matter of defense. In these circumstances, I do not understand how the majority can use the record facts here to construct an estoppel against Walter on this issue. Absent such estoppel all agree that the redemption was invalid. Given the majority’s unwillingness to allow Walter to make a claim under the debentures in this action, the court should at least conclude that the validity of the attempted redemption was not before the district court in this action.
The majority construes a statement made by plaintiff’s counsel in his opening address to indicate that counsel at that time did not intend to contest the attempted redemption on any grounds other than wrongful discharge —a meaning which is not clear from the plain language of the statement. It further finds in a brief exchange on the record between the district judge and counsel for the plaintiff what it deems to be conclusive evidence that plaintiff was not aware of the possibility of attacking defendants’ attempted redemption until such a course was suggested to plaintiff late in the trial.
I believe that the majority has taken the statements upon which it relies out of context and has based its conclusions on a tenuous and conjectural reading of the language. At worst either passage relied upon could be read to sustain an inference exactly opposite to that which *584the majority seeks to draw.1 At best, the quoted passages merely show that plaintiff did not in fact raise objections to the redemption attempt. But in my view, the burden of raising this defensive matter was not on the plaintiff.
Whatever value the quoted portions of the transcripts may have to demonstrate that plaintiff did not assert imperfections in the “tender,” they do not help to sustain the majority’s estoppel theory. The debentures actually came due on January 1, 1970, eighteen days before the commencement of trial in this case. It therefore is in*585appropriate to imply that statements or representations made by plaintiff during the trial mislead defendants, preventing them from protecting their interests, since there was no act that defendants could then perform that would have prevented the debentures, retroactively, from reaching fruition.
The majority asserts that plaintiff never amended his complaint nor undertook any action to inform defendants of his technical objections to the tender. But the majority cites no authority for the proposition that plaintiff had a duty to amend his complaint.
Nor is Second National Bank v. Lash Corp., 299 F. 371 (3d Cir. 1924), controlling here. The majority relies on Lash for the proposition that plaintiff is estopped from now asserting that the debentures were never properly redeemed since he never put defendants on notice that their supposed tender was imperfect at the time it was made.
But Lash is clearly distinguishable. Lash applied the estoppel principle to prevent the use of contract defenses available before suit but not cited in the answer, preventing what was essentially a deceptive trial tactic. The case involved a suit against one party to a contract who was seeking to evade his contractual obligation which, because of market fluctuations, had become disadvantageous to him. The contract sued under was bilateral, containing mutual promises — by the plaintiff, that he would tender goods in accordance with the terms and conditions of the contract, and by the defendant, that he would accept goods properly tendered and make payment for them. The plaintiff tendered substantial performance. The defendant rejected the tender and affirmatively represented that there was only one basis for his rejection. He was subsequently prevented from introducing for the first time at trial his other objections to the tender.
*586The case at bar, however, differs substantially. Here, the defective tender ground was based on an act — the tender— that had not yet occurred when plaintiff filed his complaint; there is therefore no basis for concluding ■ that plaintiff withheld from his complaint available grounds for an attack on the tender in order to deceive defendants. Here the party against whom the majority applies the estoppel principle is seeking .to enforce — rather than to evade — a contractual obligation, to gain no more than the benefits that flow by operation of that contract.
Here also the debenture agreement required merely unilateral acts: once Walter’s employment was terminated Mead need only have sent notice of redemption together with payment of the amount due under the debentures, and Walter’s rights would have been extinguished automatically, without any action by Walter. Moreover, here, at the time of the offer of tender, Walter took no action, made no affirmative representations about the sufficiency of the offer, and made no additional statements about the substantive aspects of the case until he filed his pretrial Statement of Issues on October 20, 1969, .approximately two months prior to the time the debentures came due in full.2
Finally, in this case Mead’s acts so flagrantly violated the debenture redemption provisions that it cannot be said that Mead offered substantial performance. When one contracting party is bound .to tender a given performance, and he attempts a tender by offering performance which is sub*587stantially different from, that contemplated in the contract, his attempted tender should be construed as an offer to reform the contract that gives rise to no obligation on the part of the offeree to accept, and that, if left unaccepted, is utterly ineffectual. Smeet’s letter of October 19, 1963, was exactly that — an offer of reformation that was never accepted by Walter. Stated differently:
In order to constitute a valid tender, the tenderer must offer a specific amount. While such amount need not be beyond dispute, nothing short of an offer of everything that the creditor is entitled to receive is sufficient, and a debtor must at his peril tender the entire sum due, . .., and a mistake in tendering an amount less than the sum due is the misfortune of the tenderer, the tender having no legal significance if refused, and the position of the parties remains the same as though no tender had been made. 86 C.J.S. Tender § 7 at 562.
An offer of performance, it seems to me, is not a valid tender unless made in good faith. Mead’s demand that Walter surrender the debenture certificates, and its deduction of an amount that it deemed as owed the company by Walter, when compared with what was actually required of Mead under the debenture redemption provision, clearly demonstrate that Mead’s redemption attempt was not made in good faith. Consequently, its offer of performance did not constitute a valid tender.3
Moreover, given the substantial and obvious manner in which the offered performance was deficient, it is clearly implausible that defendants could have, in good faith, believed the redemption attempt to be valid or that plaintiff could have misled them to so believe.
The estoppel principle is therefore inapplicable under the facts of this case. The judgment of the district court *588should be affirmed except as to the attorney fee issue. Alternatively, in reversing that portion of the district court judgment which dealt with the redemption issue, the majority should state that its decision is without prejudice to plaintiff’s right to bring a separate action under the debentures.
The portion of plaintiff’s opening statement quoted by the majority is as follows:
We say that — and I feel that the evidence will show — that he was arbitrarily fired in violation of this contract; that his debentures were not properly redeemed under the very provisions of those debentures.
I find this language ambiguous, and nothing in preceding or subsequent portions of the pretrial statement elucidate exactly how plaintiff proposed to show that the debentures had not been properly redeemed. However, inasmuch as defendants brought the redemption issue into controversy, it could well be that counsel was merely indicating that plaintiff was prepared to rebut defendants’ affirmative defense.
A continuation of the portion of the exchange between defense counsel and the court quoted by the majority follows. I find it to demonstrate that defendants understood and intended the redemption issue to be defensive matter about which they had yet. to make an offer of proof.
The Court: Now, the debentures, however, provided how they should be redeemed. If they properly discharged him, did that relieve them of the obligation to redeem the debentures in the manner stated on the face of them?
Mr. Rosenberg: Well, I submit, your Honor, they made an attempt to redeem them. Of course, this is not yet all fully in the record. That is still to come out on our side, how this is done.
The Court: Well, then if I take that evidence in the light most favorable to him, then he would have made out a case which would cause us to go forward as to more than just debenture profits up to ’63.
Mr. Rosenberg: I think there is evidence in the record that an attempt was made to redeem them.
The Court: I know, but not in accordance with the terms of the debentures.
Mr. Rosenberg: Well, I’m not sure that counsel has spelled that out and proved that it was done.
The Court: He doesn’t have to, for the reason the letter — there is a letter from somebody telling him we have computed thus and so and if you will give your debentures to somebody—
Mr. Rosenberg: Yes.
The Court: ■ — we will give you this amount of dollars which represents what the debentures are now worth, less what we estimate you owe us.
Mr. Ireland [Walter’s counsel] : It’s Smeet’s letter.
The Court : That’s the letter, and I’m asking you the fact if we concede that they had good cause to discharge him did that relieve them of the obligation to take into the debentures in the manner in which it says it was to be taken in ?
In fact, upon receipt of the letter-offer, Walter was silent. He clearly did not comply with the terms of the offer — by turning over his debenture certificates — nor did defendants seek to compel him to comply. Under such circumstances it might be said that Walter had absolutely rejected the offer and that his silence was without prejudice to his later assertion of grounds for his rejection. See 5 Williston on Contracts § 744 at p. 526, where, in a passage quoted with approval, it is stated:
But when the buyer has absolutely rejected the goods, for whatever reason, his silence as to other objections which would justify his refusal to accept, when unaccompanied by conduct which may have misled and prejudiced the vendor, cannot be construed as a waiver of the buyer’s right to insist on his plea of non-performance on those grounds.
It should be noted that the debentures involved in this ease could not have been transferred by Walter without the prior written consent of Mead, therefore there is no possible justification for Mead’s demand that Walter surrender his certificates before he would be allowed to recover the amounts due as there might have been had the debentures been negotiable instruments.