35 Iowa 148 | Iowa | 1872
Upon the trial there was evidence tending to show that the plaintiff, before the property was taken from his possession under the chattel mortgage, offered to defendant a sum, which, in connection with the value of certain labor performed for defendant, and which was to be applied toward the payment for the wagon, equaled the amount due on the purchase, and that defendant refused to receive it. The court gave the following instruction: “ If the plaintiff was owing the defendant for said property, and the chattel mortgage was given to secure the payment therefor; and if you further find that the plaintiff, or some one for him, offered to pay and tendered to the defendant the pay for said property before defendant took possession of it, and he refused to receive the same, then you will find for the plaintiff.”
The defendant excepted, and now assigns the giving of this instruction as error.
This instruction is erroneous in that it ignores the necessity of a continued readiness and offer to pay, and of the presence of the money in court, in order to constitute a valid tender. Freeman v. Fleming, 5 Iowa, 460. It may be conceded that the defendant wrongfully took the property into his possession if the debt was due, and the plaintiff offered to pay the amount thereof. But the rights of the parties are to be determined in this action, not from their status at the time the property was taken by defendant, but at the time the action of replevin was instituted. If defendant, after getting the property into his possession, had offered to return it to plaintiff upon payment of the amount due, and plaintiff had refused to accept it and make payment, it would not we apprehend be claimed that he could afterward maintain the action of replevin.
Reversed.