Hartman v. Stark

195 P. 1117 | Or. | 1921

JOHNS, J.

1, 2. The facts are peculiar. Plaintiff’s judgment in the Circuit Court is based upon the promissory note which it held against Lambert. In an effort to collect its claim against him, a garnishee notice was served upon Kittie M. Stark personally, and as .executrix of her deceased husband. In response to the notice she made answer to the effect that she did not have any property belonging to Lambert in her possession or under her control. Plaintiff then filed written allegations and interrogatories', to which she then made answer that at one time she did have forty shares of stock in the Union Laundry Co. held as a pledge to secure the promissory note of Lambert to the estate upon which there was due and owing $2,563.03, and that upon receipt of the full amount, she had transferred the stock to one, A. E. Ford.

It does not appear from the record as to whether the allegations and interrogatories were filed before or after judgment was rendered against Lambert. Assuming without deciding that such proceedings could legally be taken after the rendition of judgment, upon a garnishment which was made before judgment was entered, the question is then presented as to what was plaintiff’s remedy. At the time she was served with a garnishee notice by an order of the Probate Court of Multnomah County, Kittie M. Stark was the duly appointed, qualified, and acting executrix of the estate of her deceased husband. As such executrix she then held the forty shares of stock as collateral security for the payment of the $2,500 note of Lambert, which with accrued interest was then due and owing from him to the estate. There is no pretense that the plaintiff had any personal claim against the Stark estate. The claim which it was seeking; to collect was against Lambert. There is nothing in the record of the Circuit Court which shows or tends to show that the plaintiff ever tendered or offered to pay the estate the amount of its claim against Lambert for which it held the laundry stock as collateral. Without the payment or the offer to pay the estate the amount of that claim, the plaintiff did not have any right or claim to the laundry stock, and the Circuit Court would not have any jurisdiction or authority over it. As a condition precedent to any authority or control over the stock, it was the duty of the plaintiff to pay or offer to pay the estate the full amount of its claim against Lambert. There is nothing in the proceedings of the Circuit Court in the case against Lambert to show that this was ever done.

In this condition of the record and without further proceedings in the Circuit Court against the garnishee in the Lambert case, the plaintiff “In the Matter of the Estate of T. M. Stark, Deceased,” filed a petition against the defendant as executrix, in the Circuit Court in probate, of Multnomah County, in which it alleges that it is ready and willing to pay into court the $2,563.03 and interest, and become subrogated to the rights of the estate to the stock in the Union Laundry Company and prays for an order canceling and surrendering the stock tó the court, there to be dealt with in such manner as may be just and proper in the garnishee proceedings, on receipt of the money and interest.

Here again .it will be noted that no legal tender of the money is made. In the absence of refusal or waiver, it is not sufficient to allege that a person is ready and willing to pay. To make a valid tender, the party must be ready and willing and offer to pay. In “Words and Phrases,” volume 6, page 6910, it is said:

“Tender has a definite, legal signification. It imports, not merely the readiness and an ability to pay the money or to deliver over the deed or property at the time and place mentioned in the contract, but also the actual production of the thing to be paid or delivered over, and an offer of it to whom the tender is to be made.

“It is not enough that the party has the money in his pocket, and says to the creditor that he has it ready for him and asks him to take it, without showing the money.

“To constitute a valid, legal tender, there must be an actual offer of the sum due, unless the actual production of the money be dispensed with by a refusal to accept, or something equivalent thereto.”

In Smith v. Foster, 5 Or., page 44, it is held that—

“The mere readiness and willingness of a debtor to pay a demand when due, amounts to nothing without an offer or tender of payment by him, and a refusal by the creditor.”

In the instant case, no refusal or waiver is shown or alleged and no legal tender was ever made, and without it the court would not have any jurisdiction to order the defendant to surrender or deliver the laundry stock. That point is decisive, and there is no occasion to consider any of the other questions presented on the appeal.

The judgment is affirmed. Affirmed.

Burnett, C. J., and Bean and Brown, JJ., concur.