9 Mich. 9 | Mich. | 1860
The plaintiff employed the defendant to repair a carriage, and the defendant retained the carriage under a mechanic’s lien for the amount due him for making such repairs. To obtain possession of the property the plaintiff tendered, as the jury finds, sufficient to discharge the lien. This tender necessarily operated to release the property, and the plaintiff was entitled to immediate possession of it. That such would be the effect of an unconditional tender is not doubted; but as the tender in this case was made upon condition that the carriag’e should be delivered up, it is thought that it has not such effect. A tender made to procure the possession of property can hardly be called conditional because it is accompanied with a demand for the property. But it does not appear that any objection was made to the tender by the defendant, except for insufficiency — he demanding more than the sum offered; and as the jury find that sufficient was tendered, the tender was good, even were the strictest rule to prevail; upon the well established principle, that an objection made at the time of tender precludes all others, and if that be not well grounded, the tender will be held good.
It is claimed that the want of the money in court obviates the effect of the tender. Were this an action by Moore to recover compensation for the repairs, the want of the money in court would render the tender nugatory; as the effect of tender in such cases is to stay interest and relieve from costs, and therefore the party making the tender must always have the money within reach of his creditor. But in this case, the tender having once operated to discharge the lien, it was gone forever, and nothing could revive it. The reasons which require the
The judgment is reversed, and a new trial granted.
