Patterson v. Sharp

41 Cal. 133 | Cal. | 1871

By the Court, Rhodes, C. J.:

It is alleged in the complaint that the plaintiffs tendered to Sharp, and also to Byrne, six thousand dollars, the money advanced, together with interest thereon at two per cent per month—the stipulated rate—at a specified time; that they refused to accept the money; and that the plaintiffs, from the time of the tender, have continued ready to pay that amount of money. These facts, not being denied by the answer, are admitted; and as evidence would not be admissible for the purpose of controverting facts thus established, the question whether the judgment ordered the payment by the plaintiff's, of too large a sum of money, arises upon the judgment roll without bringing up the evidence, if any, that may have been offered on that point. The amount of money tendered by the plaintiffs—six thousand two hundred and twenty-four dollars—was the amount due at the time of the tender, and the tender put a stop to the accruing of interest. (2 Pars, on Cont. 150, and cases cited.)

Cause remanded, with directions to modify the judgment by striking out the sum of seven thousand eight hundred and thirty-six dollars wherever it occurs in the judgment, and inserting in the place thereof, the sum of six thousand two hundred and twenty-four dollars, and ordering said sum to be paid within ten days from the entry of the judgment.

Mi-. Justice Sprague expressed no opinion.