72 S.E. 83 | N.C. | 1911
The facts are sufficiently stated in the opinion of the Court by Mr.Justice Walker.
This action was brought to enjoin the defendant from selling certain property under powers of sale contained in two mortgages, originally executed by plaintiff to Mrs. Sophia B. Duffy and the Citizens Bank of New Bern, to secure notes of the plaintiff, and by them sold and transferred to the defendant. It is alleged in the complaint that several cash payments were made upon said indebtedness by the *44
plaintiff, which, with the proceeds of certain timber cut from the land and received by the defendant, which, by reason of the contract between the parties, should have been applied to the debt, have reduced the amount thereof to $273.68, which sum was tendered by the plaintiff to the defendant, who refused to accept the same. No money was deposited in court in order to keep the tender good. It is the universal rule that, in order to constitute a valid and effectual tender, the party who makes it must allege and show that since the refusal to accept the money he has always been ready to pay the same, and must bring the amount of the tender into court, and it has been said that he should take a rule on the plaintiff or party to whom the debt is due, to accept the same or proceed at his peril. Cope v. Bryson,
The defendant in his answer insisted that the amount due upon the indebtedness secured by the mortgages was not $273.68, as alleged by the plaintiff, but a much larger sum, to wit, $1,180.96, and demanded the payment of that amount."
The jury found that the true sum was neither of the said amounts, but $203. It was urged by the defendant in the court below that this verdict was erroneous, as he was entitled to recover at least $273.68, the amount of the tender. We do not see upon what ground any such claim can be based. The tender was rejected, and, as the money was not paid into court, it left the matter open and at large, the same as if no such tender had been made. The defendant should have taken the money when it was tendered, if he wished to avail himself of the tender. It is *45
now too late for him to get the benefit of the same. The law will not compel the plaintiff to renew his tender, so that the defendant, who has submitted his cause to the jury and been defeated in his contention, may have another chance to accept it. This would be giving him two chances, to which he is not entitled, either in law or equity. Good faith requires that he be made to abide by his first decision. The fact that a greater sum was tendered than was actually due did not entitle the defendant to that sum if he rejected the offer, so as to prevent the court from ascertaining the true amount for which judgment should be given. InGlos v. Goodrich,
We see from this case that even when the tender was held to be good and continuing, by reason of what was said to be equivalent to actual payment into court, the court has the right to find the correct amount and enter judgment for it, and not for the larger amount which was tendered, and afortiori this can be done when the tender was made out of court and under the circumstances stated in this case.
In Abel v. Opel,
The jury have decided against the defendant, mortgagee (who was oppressively demanding far more than he was justly entitled to recover), and upon evidence, as we think, sufficient to sustain the verdict, and there was no error committed during the trial which invalidates that verdict. We, therefore, affirm the judgment.
No error.
Cited: Medicine Co. v. Davenport,
(56)