Berthold v. Reyburn

| Mo. | Mar 15, 1866

Wagner, Judge,

delivered the opinion of the court.

That the tender made on the' 5th day of J.uly, 1864, by the plaintiffs’ agent to the defendant was good, is not seriously questioned in this case. As a general rule, to make a tender of money valid, the money must be actually produced and proffered, unless the creditor expressly or impliedly waives this production; and the creditor may not only waive the actual production of the money, but the actual possession of it in hand by the debtor — 2 Pars. Cont. 642, 5th ed. Nor is the debtor bound to count out the money, if he has it and offers it when the creditor refuses to receive it — Wheeler v. Knapp, 8 Ohio, 169; Breed v. Hurd, 6 Pick. 856.

A tender puts a stop to accruing damages or interest for delay in payment, and gives the defendant costs — Coit v. Houston, 3 Johns. Cas. 243; Cornell v. Green, 10 S. & R. 14; Law v. Jackson, 9 Cow. 641. Here the plaintiffs were willing and ready to pay the amount, produced the money and tendered it in U. S. notes; but the defendant refused to receive it, and the only objection made was that she would receive nothing but gold.

A plea of tender, to be effective, must show that defendant has always been willing and ready to pay the amount from the date of tender. The plaintiff may avoid the plea of tender by showing a subsequent demand and refusal, but to have this effect he must show that the demand made was of the precise sum tendered, a variance being fatal — 2 Greenl. Ev. § 608; Spreyberg v. Hide, 1 Campb. 181; Tlutford v. Hubbard, 22 Vt. 440" court="Vt." date_filed="1850-03-15" href="https://app.midpage.ai/document/town-of-thetford-v-hubbard-6574351?utm_source=webapp" opinion_id="6574351">22 Vt. 440; Dixon v. Clark, 5 Com. Bench, 378; Haskell v. Fawcett, 11 Mees. & W. 356. Now, the first question is, did the assent of defendant’s attorney, on the 10th day of February, 1865, amount to such a demand, and the failure to pay immediately, to such a refusal, as to avoid and do away with the previous tender ?

The evidence of demand is not satisfactory. The only testimony is that of Mr. Farish, the plaintiffs’ attorney, who states that about four o’clock in the afternoon of that day (10th February), Mr. Gantt (defendant’s attorney) came into his office and said, “You understood me, this morning, that we would take that money ?” “ Yes,” I replied ; “ I understood you would take that amount, with interest.” He then said, “ We will take the amount tendered.” ' I said, “ without interest ?” He assented, and said, “ Bear in mind, the amount will now bear interest; or, interest will now run on the amount tendered.” I told him that I was “ very glad to understand him ; that I had not so understood him in the morning.” He then testified that he immediately wrote to plaintiffs, informing them that defendant had agreed to take the amount tendered in July, 1864, and that interest would run from the date of the agreement; that plaintiffs came to see him, and inquired if the money should be paid at once, and he replied in the negative, but said, as the amount was drawing interest, the sooner it was paid the better. On the 21st of February he again met Mr. Gantt, who inquired about the money, and he then intimated, that, it not having been paid, they would claim interest from the start; to which witness replied, that the understanding was, that it shonld draw interest from the 10th of February. On the same day on which this conversation took place, he procured a check for the precise amount tendered, and went to Mr. Gantt’s office and tendered it to him in payment of the debt. Mr. Gantt offered to take the check for the money-tendered, at its face, on account of the note and interest from maturity, but not in full payment, and the witness declined to endorse and deliver the check upon such terms. It would be giving great latitude to the meaning of language to' construe the conversation and mutual understanding between the attorneys into such a demand as would avoid the tender. It appears they had two interviews before they understood each other as to the acceptance of the amount, and then it was agreed that interest should run thereafter till final payment. There was an assent and an intimation that it would be received; but the law requires a demand and a refusal of the precise sum tendered, and we would dislike to lay it down as an established rule that there was a sufficient compliance with these requirements in this case.

But there is another objection; the demand, if any, was made of the attorney, and not of the debtor. A tender may be made by an agent, or to an agent, where he is authorized to receive the money ; but a demand ought to be made personally of the debtor, in order that he may have an opportunity of paying the money demanded — Edwards v. Yeates, Ry. & Mood. 360; Coles v. Bell, 1 Campb. 478, n.

Nothing being shown sufficient to avoid or destroy the effect of the tender, and the plaintiffs being entitled to the relief they ask in their petition, the judgment will be reversed and the cause remanded.

The other judges concur.

A motion for re-hearing was filed by respondent, and was overruled.