18 Vt. 337 | Vt. | 1846
The opinion of the court was delivered by
The question raised in this case lies within a narrow compass. It appears, that the plaintiff commenced his action on book account before a justice of the peace, returnable on the sixteenth day March, 1844, and that on the fifteenth day of March the defendant tendered to the plaintiff seven dollars, saying he tendered it for what he owed the plaintiff. The plaintiff offered to take it in part payment, but the defendant said he should not have it so. It being suggested by the witness to the tender, that it would make no difference, if the plaintiff’s claim, for damages and costs, on trial, should prove to be more than seven dollars, the plaintiff then received the sum so tendered. It appears, that the auditor found that there was due to the plaintiff, at the time the tender was made, the sum of eight dollars and fifty seven cents for his debt and costs, which had then accrued; and the auditor reported, that he found due to the plaintiff one dollar and fifty seven cents. It is now claimed, that, from these facts, the reception of the seven dollars should bar the plaintiff’s entire right of action.
The question before us is not, whether the tender would have been valid, in case the plaintiff had declined to receive it. It is settled, by many authorities, that, if a tender is clogged with any conditions, so that the taking of the money tendered would constitute an admission, by the party, that it was in full of his claim, he may for this cause reject the tender, as being invalid. As where the sum tendered “ is to be taken in full of all demands,” — or, “ as all that
The auditor, in this case, does not find, that the seven dollars was received in full satisfaction, but quite the reverse. The defendant offered it “ for what was due; ” yet the plaintiff proposed to take it in part payment; and though the defendant at first refused to let him have it so, yet it is stated in the report, that, upon its being suggested by the witness, that, if the damages and costs should prove to be more, it would make no difference, the plaintiff thereupon took the money so tendered. There can be no pretence, from such a state of facts, that the minds of the parties met in an agreement, that the seven dollars should be received in full. Besides, this would be matter of fact for the auditor to settle, and not for this court to determine. In Jennings v. Major, 34 E. C. L. 294, it is said by the judge, that the plaintiff might have taken the sum tendered, but should have said, “ I still claim more,” and that the other party should then have added, “ You may lake it, and get more if you can.” I think there is good sense in this remark. In such case there could be no implied admission against either of the parties. In the case now before us the effect of the facts reported is the same.
The case of McGlynn v. Billings, 16 Vt. 329, is distinguishable from the case at bar. It appears, in that case, that, the parties having examined their mutual accounts, the defendant claimed, that the true balance due to the plaintiff was eighty two dollars, and drew an .order on one F. S. for that sum and offered it to the plaintiff, as the
It was clearly right, in that case, to give to the transaction the effect of an accord and satisfaction. In the case now before us there was no accord, and no entire satisfaction of the plaintiff’s claim. The result is, the judgment of the county court is affirmed,