82 Neb. 310 | Neb. | 1908
This is a replevin action, and presents to the court a controversy between the parties as to the title and the right to the possession of a certain gold ring with a diamond setting, valued at $200. The facts out of which the trouble arises were related by defendant substantially as follows: April 3, 1902, the defendant found himself in the city of Crawford without money, but with the diamond here in controversy. He met the plaintiff, and, after verbal negotiations, borrowed from him $50, payable in three months, and pledged the diamond ring as security therefor. Defendant agreed to pay, and plaintiff agreed to accept, $5 as interest for the loan. At the same time the defendant gave plaintiff authority to sell the ring for $150. On June 14 following, the defendant sent to the
Plaintiff testified that the $50 advanced by him was a loan, but he says that he was authorized to sell the ring for $75; that the $5 to be retained was not interest, but was an agreed compensation for his trouble in making the sale. He testified further that he actually sold the ring to a traveling man, and later repurchased. He further testified that no particular time was mentioned for the pay ment of the loan, but that it was to run a month or two. Prom the evidence we are convinced that default had not been made in the payment of the loan at the time defendant remitted to the plaintiff the sum of $55 on June 14, 1902. If plaintiff had made a sale, as he claimed and testified, it was .ratified by the defendant. Plaintiff’s evidence as to this transaction is not convincing. The jury found against him, and we accept their verdict as final upon this proposition. The conduct of the defendant did not amount to a ratification of a sale by the plaintiff as pledgee to himself. The plaintiff was required to return
It is the general rule that an unaccepted tender of the amount due after maturity of the debt, although not kept good, discharges the lien. As to chattel mortgages, it is the rule in this state that, if the tender be made after default of the payment at the stipulated time, it must be kept good, or it will be entirely unavailing, but that a tender of the amount secured on the day fixed for payment, although not accepted and not kept good, will release the property from the lien. In Wilkins v. Redding, 70 Neb. 182, it was held: “Where personal property is pledged to secure the payment of a debt, the pledger cannot recover the property in a replevin action without paying or tendering the whole amount of the debt and keeping-good the tender.” The learned commissioner, writing the opinion in that case, failed to distinguish between tenders made upon the maturity of the debt and those made after default, and failed to distinguish between a tender necessary to release the lien of a chattel mortgage and that of a pledge. We find that the reasoning of that case was founded in part on Tompkins v. Batie, 11 Neb. 147, wherein it was held that an unconditional tender kept good is necessary to defeat the mortgagee’s action, but the commissioner overlooked the fact that the rule he quoted from
There is no prejudicial error in the record, and we recommend that the. judgment of the district court be affirmed.
Affirmed.