24 Vt. 536 | Vt. | 1852
The auditor, in this case, has reported the sum of $52.44, as being the balance due the plaintiff on the 15th day of May, 1850. This balance, so far as the plaintiff’s account is concerned, is conclusive on both these parties, as no exceptions by the plaintiff were taken to the ruling of the auditor, in ascertaining that amount. We are, therefore, to regard that sum as the balance really due at that time to the plaintiff.
The question arising in this case, is upon the tender of $53.44, made on this account, shortly before the commencement of this action. No question has been urged, but that a legal tender can be made in eases of this character, if all the legal formalities have been observed in making it. The auditor has reported, that at the time, the parties met for the purpose of making a settlement, that the above sum, as now allowed by the auditor, was then presented by defendant, as the balance due from him. On that occasion, the sum of $53 in bank bills, and 44 cents in change, was counted out, and placed with the account, on the table in the room, in the plaintiff’s presence, and he was informed that it was ready for him. If the character of the money tendered had been objected to, it is evident that it would not amount to a legal tender. The authorities, however, are 'uniform upon the subject, that a tender in bank bills is good, if the creditor places, his refusal to receive the money on other grounds, or makes no objection to the tender, on the express ground that it is in bank notes. The auditor
The objections to this tender, are urged, first, that the amount originally tendered was $53.44, but the amount paid into court was but $52-44. This last sum is all that is really due the plaintiff, and all he can honestly demand, as found by the auditor-. The amount of the indebtedness as agreed to by the defendant at the time of the tender, was really less by one dollar-, in consequence of the last item in defendant’s account not being then reckoned, as the defendant was then ignorant of the charge, but it was within the knowledge of the plaintiff,, and which he suppressed.
It is not for him, therefore, to insist upon an acknowledgement so made by that tender, under an ignoz-ance of facts, which it was his duty at that time to have removed. The defendant has done all that should be requiz-ed of him to do, to be ready at all times to pay the aznount really due, when demanded, and at the pi-oper tizne to pay the same into court. It has also beezz objected, that this tender is of no avail, from the fact, that the money paid into court, was not the identical money previously offered or tendered. And it has been insisted, that to keep a tender good, the party must keep the identical money offered, ready to be paid over, on demand, or in a proper 'time to pay the same in court. This principle, whatever may be the rale in-relation to the tender of specific articles, can have no application to the tender of money, or that which the parties have treated as equivalent to tlie current coin of the country. It is to be borne in mind, that a tender of money does zzot extinguish the debt. It simply bars the claim to damages and interest, and the costs of an action, if the matter is prosecuted.