35 Conn. 553 | Conn. | 1869
Lead Opinion
Although the production and presentation of the money is ordinarily one of the necessary elements of a lawful tender, it is one the creditor may waive, and I am satisfied that the Superior Court was right in holding this tender sufficient, and reversing the judgment of the city court.
1. The plaintiff met the defendant upon the street and said in substance: “ I am now ready to pay you the $17.85 which I owe you” — -having money in his pocket sufficient to pay the
2. And I also think that the defendant was not bound to tender any cost. A writ had been procured and issued and served upon a garnishee, but not upon the defendant. It
The plaintiff claims that there is a distinction to be observed in a case like this, founded on the idea that the garnishee is an agent, and that notice to him is notice to the debtor. To this there are two answers: 1st, that it does not appear in this case that the garnishee was any thing more than a mere debtor, or that he was even that; 2d, that actual knowledge even that cost has been made will not subject the defendant. Such knowledge existed in the case of Holdridge v. Wells above cited. Nor will any notice but the legal notice necessary to constitute the commencement of the action. For these reasons I think there is no error in the record.
In this opinion Hinman, C. J., concurred.
Concurrence Opinion
I concur with the majority of the court in regarding the tender as sufficient in form, and the actual presentation of the money as excused by the declaration of the plaintiff that the defendant must settle with Mr. Bough ton, his attorney. This was equivalent to a refusal to receive the money, and if the defendant had it with him and intended but for this refusal to present it to the plaintiff for his acceptance, the facts constitute a sufficient tender.
But I cannot agree with the majority of the court in regarding a tender of the bare amount of the debt without the costs, sufficient in the circumstances. The cost was legally made, and was necessary for the securing of the debt by attachment, and if, after such cost has been made, a debtor can lawfully make a tender of the debt alone, then in every case a .debtor may by watching his opportunity throw upon the creditor the very cost which his own delinquency has made necessary. The service is not complete until a copy is left by the officer with the defendant, or at his place of abode, and this copy, which is to contain a copy of the officer’s return of his doings, can of course be made only after 'the attachment has been completed. The defendant, if watchful and disposed to make trouble for his creditor, can therefore always make a tender of the bare debt between the time of the attachment and the leaving of the copy in service. The attachment may have involved a large expense which the creditor will be compelled to lose, and not only so, but where personal property has been attached it may be necessary for] the officer, for his own justification, to go on after the tender and make further expense by making a return of his doings, and certainly it will be necessary for him to carry back the attached property.
Now this is so clearly unjust as to be a reproach to the law if the law sanctions it, and it is only under the clearest necessity that we should hold it to be thus sanctioned.
The sole ground on which it is holden by a majority of the court that such a tender is sufficient, is that the suit, according to our practice and the decisions of this court, is not regarded as legally commenced until service is made on the defendant. It is clear that the mere procuring of a legal writ,
And I put this view of the case, not on the ground that such an attachment is the commencement of the suit, but on the ground that these costs are legally and necessarily made, in the course of official duty, by an officer of the law, and that the statute intended that the debtor, if found to owe the debt, should pay them. Here his tender admits the debt, and it is only by reason of this tender that the plaintiff is_ prevented from getting a judgment that would of course have carried the costs with it.
It is not enough to say that these costs are merely incipient and inchoate, and not legally attached to the .debt, for after.the suit is commenced they are still inchoate and do not become any part of the debt until after the judgment. The reason why a tender of the costs must be made where the debt is tendered during the pendency of the suit, is not because they have attached themselves to the debt and become a part of it, but because they are lawfully and necessa
We have no decision of this court directly upon the precise question made. In the case of Holdridge v. Wells, 4 Conn., 151, it was holden that where a writ had been procured and placed in the hands of an officer, but service not commenced by him, a tender need not cover the cost of the writ; but an important distinction can be made between that case and this, which would fully sustain the court in adopting the equitable rule which I propose. The writ, when procured by the plaintiff, is subject entirely to his own control. He can put it in his pocket and keep it for weeks without using it, or if he chooses he may never use it at all. It is so far not brought home in any way to the defendant or to his property. But when an attachment is made the officer of the law has begun to execute the writ, and it has begun to operate, directly and legally and at certain legally established cost, upon the defendant and his property. It has now become an active instrument in- the hands of the law, and it is beneath the dignity of the law for it to allow the defendant, while acknowledging his indebtedness, to evade the payment of this legal and necessary cost, and a great injustice to the plaintiff to compel him to bear the loss of it. It seems to me that the effect of this decision should not be extended, when so obvious a distinction can be made, and when by extending it we are doing injustice in the particular case, and establishing a rule .that cah work only injustice wherever applied.
.In this opinion Park, J., concurred.