80 Minn. 162 | Minn. | 1900
Action by plaintiff in replevin to recover possession of certain machinery. The answer admitted ownership in plaintiff, and set up a lien on the same for expense of storage. Plaintiff appeals from an order denying its motion for a new trial, a verdict having been rendered against it for $62.50.
1. The contract between the parties provided for the appointment of defendants as the agents of plaintiff to sell its machinery during the season of 1899 upon certain terms. Among other things, defendants agreed to safely house or store, and keep free of taxes or other charges to plaintiff, all goods on hand at any time. It is also provided as follows:
“Said Peering Harvester Co. shall allow said agent, in full compensation or consideration for all his undertakings, and said agent hereby agrees to accept the same, the excess or difference between the net price specified herein and the price obtained from the purchaser, the same to be paid pro rata in cash and in notes, as the same represents the respective sales.”
The plaintiff submits that under these terms of the agreement defendants are not entitled to claim anything for storage; that the consideration, as expressed, referred to and covered the expense of housing and caring for the property. The contract provides that the plaintiff may terminate it at any time, and take possession of the goods unsold remaining in the agents’ hands, and it is alleged in plaintiff’s reply that it terminated the contract on March 14, 1899, but no cause was assigned in the pleadings, and no issue submitted on the trial, as to the reason for terminating the contract. That instrument states that plaintiff might terminate it at any time,
2. The following part of an instruction as to tender was excepted to by appellant, and is assigned as error:
“Now, in order to constitute a good tender of money of any amount, there must be an actual tender of money; that is, legal tender, that would be legal in law, and actually offer the money. To constitute a valid tender of money, it must be offered and exhibited to the person to whom it is made, unless it appears from the preponderance of the evidence that such person, by his conduct or words, prevented the tender or exhibition of the money.”
The attorney of plaintiff testified that he had on June 24, 1899, gone to defendants’ place of business, and offered D. A. Hamilton, one of defendants, $75, tendering him the exact amount in bills in discharge of the lien; that he refused to accept it, and demanded $100. The defendant denied that any money was offered or shown to him; says that the attorney said he would give $75, but did not produce it or offer to. .Immediately after this conversation plaintiff caused the papers to be served in this case. Three or four days after, the same defendant went to the attorney’s office, and said that he would accept the $75, but the plaintiff refused to pay it. It was a proper question for the jury. The instruction complained of was not misleading, as suggested, and substantially states the law. The mere statement by the attorney that he would give $75, and a refusal to accept it by defendants, does not constitute a tender. In the case of Pinney v. Jorgenson, 27 Minn. 26, 6 N. W. 376, it was held that, to make a tender of money valid, the money must be actually produced and proffered, unless the creditor expressly or impliedly waives this production. The jury found that the money
Order affirmed.'':
