| Vt. | Jan 15, 1852
It seems from the facts reported by the auditor, that the plaintiff recommended himself as a comjietent workman and undertook to work, as a master-builder; and through his negligence or unskilfulness, the defendants suffered loss to a greater amount than the sum due for his services at the stipulated rate. We think this will defeat the action. The plaintiff having accepted the money paid into court, it must operate as a payment, fro tanto, and also as a conclusive admission of the conditions upon which it was paid into court. But this will not place the plaintiff in any worse condition than if he had withstood the defendants’ offer of the money. For in that case he might have been compelled, by rule of court, to accept the money paid into court, at any time, or proceed, at the peril of paying costs after that time, in the event of his not recovering more than was offered under the rule. But this must be understood with this limitation, that money paid into court not in pursuance of a tender made before the suit is brought, must, to be available, include the costs in the suit, up to that time. Judgment affirmed.