Berthold v. ReyburnBerthold v. Reyburn
delivered the opinion of the court.
Thаt the tender made on the' 5th day of J.uly, 1864, by the plaintiffs’ agent to the defendant was good, is not sеriously 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 imрliedly 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 dеbtor 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,
A tender puts a stop to accruing damages or interest for delay in payment, and gives the defendant costs — Coit v. Houston,
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
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 аfternoon 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 amоunt tendered in July, 1864, and that interest would run from the date of the agreement; that plaintiffs came to see him, аnd 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 оf 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
But there is another objection; the demand, if any, was made of the attornеy, 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 thе plaintiffs being entitled to the relief they ask in their petition, the judgment will be reversed and the cause remanded.
A motion for re-hearing was filed by respondent, and was overruled.