(dissenting). I do not believe this to be a proper case for the entry of summary judgment.
The facts are set out in the majority opinion. Those that bear reiteration here are the tender by Kayko and rejection by Swain of corporate checks of Swain Industries, Inc., as the first semiannual option payment under the contract, and the fail*505ure of Kayko to make actual tender of the second semiannual option payment.
The trial judge relied on the latter fact in granting summary judgment in favor of Swain. The majority look to the former in affirming his decision.
The trial judge recognized, as does the majority of our Court, that actual tender may be excused where the other party has manifested his intent to refuse tender if made.1 The judge went on, however, to rule that there was nothing in the record to establish this as a genuine factual contention of defendant Kayko.
In so ruling, the judge erred. Kayko’s affidavit accompanying his answer to the amended motion for partial summary judgment includes the following statement:
"That on August 15, 1969 deponent [Kayko] did have in his possession a writing from plaintiff rejecting payment by corporate check and was further informed by plaintiff on that date that a corporate check would not be accepted even though in accordance with the said option agreement.”
This, in my view, established the existence of a genuine issue of fact on the material question of whether Swain had manifested an intent not to accept tender of payment if offered.
The majority, in affirming the judgment against the defendants, say that Swain was merely rejecting a mode of tender which was riot in accordance with the contract, that Swain was not obliged to accept the corporate check of Swain Industries, Inc.
*506No complaint is made about the manner of payment, viz., bank check. Swain’s complaint is to the party vfh.o olfered payment.
I cannot agree on this record that Swain had an unquestionable right to reject the corporate check of Swain Industries, Inc. The agreement between Swain and Kayko provides that, "[Kayko] shall have the power to utilize the company surplus account and the lending power of said corporation for the purpose of making all payments hereunder”. This language is subject to the construction that it permits the use of the corporate surplus by Kayko precisely as he sought to use it here.
Questions of interpretation are ordinarily to be decided by the court, but surrounding circumstances may make plain the meaning of the language adopted.2 At the very least, Kayko is entitled to an opportunity to establish the circumstances by competent testimony before this language, seemingly consistent with his construction, is construed against him.
The majority in affirming the summary judgment rely on cases holding that a creditor may refuse tender by a stranger to the transaction. An examination of these cases reveals that they concern tender by a person who is a stranger to both parties to the contract. They are not concerned with tender by a third person on behalf of the debtor3—nor do they reach the question whether *507Swain agreed that Kayko could use the corporate funds to make the option payments. The full expression of the rule found at 52 Am Jur, Tender, § 14, p 224, reads:
"The courts generally take the position that a mere stranger to the obligation cannot make an effectual tender of payment of such obligation. But one who has an interest in the property which secures the obligation in question is not a stranger to the obligation. And a tender by one who is privy to the debtor in relation to the obligation in question and acts for and on behalf of the debtor is, in legal effect, a tender by the debtor himself and not by a stranger. A tender made by a stranger is good where subsequently ratified in good time by the party in whose interest it was made. It is an ancient rule, too, that any person may make a legal tender for an incompetent person or an infant.” (Emphasis supplied, footnotes omitted.)
I can visualize circumstances in which a creditor could properly refuse tender by a third person, but no such circumstances have as yet been shown in this case.
See Weinburgh v Saier, 303 Mich 640, 645 (1942); Ranck v Springer, 333 Mich 671, 674 (1952); Frakes v Eghigian, 358 Mich 327, 333 (1960).
See Seaboard Surety Co v Bachinger, 313 Mich 174, 179 (1945); Stark v Budwarker, Inc, 25 Mich App 305, 314-315 (1970).
See Gibson v Lyon, 115 US 439, 445; 6 S Ct 129, 131-132; 29 L Ed 440, 442 (1885); Forderer v Schmidt, 154 F 475, 477 (CA 9, 1907); Mathews v Union Central Life Insurance Co, 107 Kan 669, 673; 193 P 337, 339 (1920); 52 Am Jur, Tender, § 14, p 224, n 14.
Bator v Ford Motor Co, 269 Mich 648, 670 (1934), and Riber v Morris, 279 Mich 344 (1937), are not in point because here it is the claim of Kayko that Swain agreed that Kayko could use the corporate funds of Swain Industries, Inc., to make the option payments to Swain.