| Ark. | Dec 23, 1907
The facts in this case are stated in Kelly v. Keith, 77 Ark. 31" date_filed="1905-11-04" court="Ark." case_name="Kelly v. Keith">77 Ark. 31. In that case Keith was required by an order of the chancery court of Hot Springs County, in which the suit was pending, to pay into court the amount tendered by him to Kelly. He took a receipt from John C. Ross, clerk of the Hot Springs Chancery Court, for $350, with interest thereon from •March 18, 1901, to December 18, 1901, at the rate of six per cent, per annum, amounting to $365.75, the same being the amount tendered. Ross testified that no money was actually paid to him; that he gave the receipt because he “knew that Keith’s word to him was perfectly good”. Keith and T. R. McHenry testified that an arrangement was made with the Bank -of Malvern by which it was understood that the amount receipted for would be paid to Ross on his check. Ross went out of office, and J. E. Young succeeded him. No mone}r or check was received from Ross by Young. After the appeal was taken to this court, and during its pendency Mrs. Kelly, the appellant, concluded to abandon the appeal and take the money, and demanded it of the clerk, Young; and he failed to pay it, saying that none had been paid to him for her, which was true. She then filed a supplemental complaint in the original suit asking for a judgment for $365.75, and six per cent, per annum interest from December n, 1902, the date of Ross’s receipt, and for her costs. Upon the hearing of the cause the court dismissed the supplemental complaint, and plaintiff appealed.
The filing of the supplemental complaint was an abandonment of the appeal. The appellee was entitled to .a dismissal. Kirby’s Dig. § 1228; Bolen v. Cumby, 53 Ark. 514" date_filed="1890-11-15" court="Ark." case_name="Bolen v. Cumby">53 Ark. 514. His failure to move the dismissal was a waiver of the right.
After a tender is duly made it must, to preserve its legal effect, be kept good. Schearff v. Dodge, 33 Ark. 340" date_filed="1878-11-15" court="Ark." case_name="Schearff v. Dodge">33 Ark. 340, 347; Cole v. Moore, 34 Ark. 582" date_filed="1879-11-15" court="Ark." case_name="Cole v. Moore">34 Ark. 582, 589; Bissell v. Heyward, 96 U. S. 587; 3 Page on Contracts, § 1427; 28 Enc. of Am. & Eng. Daw (2d Ed;), pages 38, 41, cases cited.
“Notwithstanding the refusal of a valid - tender, if the creditor subsequently demands payment, and the debtor fails to pay, the tender has not been kept good; and the debtor loses the benefit of the tender.” 28 Enc. Am. & Eng. Law (2d Ed), page 41 and cases cited.
In this case Mrs. Kelly made demand upon Young, the clerk to whom the money should have been paid, to make good the tender, and he failed to do so. He was constituted the agent for that purpose. His failure made the tender of no effect; Keith having failed to supply him with the funds. The- consequence is, Mrs. Kelly is entitled to recover the $365.75 and six per cent, per annum interest thereon from the nth of December, 1902, the date of the clerk’s receipt, less whatever amount has been paid thereon, and for all her costs.
Reverse and remand with directions to the court to enter a decree in accordance with this opinion.