Rudulph v. Wagner

Jun 15, 1860
Reporters:
Before:
Walker
11. W. WALKER, J.

1. If the plaintiff desired to question the sufficiency of the plea of tender, either because the jdes itself was not filed in time, or because the money was not paid into court at the first terna, he should have objected to the plea, and had his objection passed upon by the court. He did not do this, but joined issue on the plea; and the cause was regularly tried on that plea, with the general issue. We must, therefore, consider that a regular plea of tender was duly filed, accompanied by a delivery of the money to the clerk of the ‍​​​​​​​‌​​‌​​​​‌‌​‌​‌​‌​​‌​​‌‌​‌​‌​​​​‌‌​‌​‌​‌‌‌​‌​‌‌​​‌​​‌‌‌‌‌​​​‌‌​‌​‌‌​‌‌​‌​‌​​​​​​​‌​‌​​‌​‌‌‍court, as required by section 2245 of the Code. Besides, it appears that the plea, accompanied by a delivery of the money to the clerk, was filed before any default bad been entered by the plaintiff; and if the latter bad objected to it, on the ground that the money was not paid into court at the first term, we do not perceive that there would *701have been any force in the objection. — Woolsey v. M. &. C. R. R. Co., 28 Ala. 539-540.

2. We think that the court erred in both of the charges it gave to the jury. The answers of the defendant, which furnished the only evidence offered by the plaintiff of his demand, show that, “about the 16th December, 1856,” the defendant purchased and received corn of the plaintiff, amounting, at the price agreed on, to $132 77; and that “ about Christmas, 1856, through a friend who acted as his agent, he tendered to the plaintiff the amount which he owed him,, estimating the quantity and price as aforesaid.” The first objection which is made to the prooí of atender, is, that it shows only a tender of the principal amount for which the corn was sold, $132 ‍​​​​​​​‌​​‌​​​​‌‌​‌​‌​‌​​‌​​‌‌​‌​‌​​​​‌‌​‌​‌​‌‌‌​‌​‌‌​​‌​​‌‌‌‌‌​​​‌‌​‌​‌‌​‌‌​‌​‌​​​​​​​‌​‌​​‌​‌‌‍77 ; the interest on the same from the time of sale to the time of the tender not being included. The plaintiff does not, in his eomplaiut, claim interest on the account, except from 1st January, 1857.’ Can he now insist, that a tender of the principal, at adate prior to the 1st January, 1857, was not a tender of all that was then due ? We do not think that he can. Although the debt may have been due on the 16th December, it was competent for the parties to contract that interest should not be demandable, if the debt should be paid at any time before the 1st January; and according to the allegations of the complaint, that was the character of the contract which the parties made.

Moreover, the bill of exceptions show3, that the only other evidence introduced on the trial was the testimony of a witness for the defendant, who stated that, “ some time between the middle and last of December, 1856,” he tendered to the plaintiff the amount which he (the witness) estimated the defendant owed the plaintiff; and that, to his best recollection, the amount was $134 or $135. ‍​​​​​​​‌​​‌​​​​‌‌​‌​‌​‌​​‌​​‌‌​‌​‌​​​​‌‌​‌​‌​‌‌‌​‌​‌‌​​‌​​‌‌‌‌‌​​​‌‌​‌​‌‌​‌‌​‌​‌​​​​​​​‌​‌​​‌​‌‌‍Now, if the principal sum due on the 16th December, 1856, was $132 77; and at any time between the middle and last of the same month, the defendant, by his agent, tendered the plaintiff’ $134 or $135, it is plain that the amount thus tendered was sufficient to cover the entire debt, both principal and interest. It is true, the witness asserts that, in his estimate of the amount of the *702debt, he included no interest. But his estimate may not have corresponded exactly with the estimate which was made by the defendant himself; and if, in point of fact, the witness, as the agent of the defendant, tendered enough money to cover the actual debt and interest, the tender was good. That there was some evidence before the jury that he did so, cannot be doubted. As there was some evidence tending to show that the defendant had tendered a sum sufficient to cover both principal and interest, it isplaiu that (even if on the pleadings the plaintiff could insist that his demand bore interest prior to 1st January, 1857,) the court erred in the charge given, unless, indeed, the second objection which is made to the tender ‍​​​​​​​‌​​‌​​​​‌‌​‌​‌​‌​​‌​​‌‌​‌​‌​​​​‌‌​‌​‌​‌‌‌​‌​‌‌​​‌​​‌‌‌‌‌​​​‌‌​‌​‌‌​‌‌​‌​‌​​​​​​​‌​‌​​‌​‌‌‍proved is well founded. — City Council v. Gilmer, 33 Ala. 116, 134; Peebles v. Tomlinson, 33 Ala. 337.

3. This second objection is, that the tender was not made on the day the debt was due, but afterwards. Whatever may be the rule in reference to contracts for the delivery of specific chattels on a given day, we think, that where there is a mere dry promise for the payment of money, and the liability of the‘defendant is restricted to the principal sum and interest, a tender of the whole amount due, principal and interest, at any time after the debt falls due, but before suit is brought, stops the interest, and discharges the party from the costs of a subsequent suit. Whether it absolutely bars the action, we need not inquire. — See Johnson v. Clay, 7 Taunton, 486; Sweatland v. Squire, 2 Salk. 623; 3 Blackst. Com. (Sharswood’s ed.) note, p. 304; Hall v. Peters, 7 Barb. 331, 334; Haughton v. Leary, 3 Dev. & Batt. 21; 2 Parsons Contr. 152-3; Tracy v. Strong, 2 Conn. 659; Day v. Lafferty, 4 Pike, 450; 2 Greenl. Ev. §607 ; Raiford v. Governor, 29 Ala. 382; Smith v. Anders, 21 Ala. 782.

4. The general rule is, that it ‍​​​​​​​‌​​‌​​​​‌‌​‌​‌​‌​​‌​​‌‌​‌​‌​​​​‌‌​‌​‌​‌‌‌​‌​‌‌​​‌​​‌‌‌‌‌​​​‌‌​‌​‌‌​‌‌​‌​‌​​​​​​​‌​‌​​‌​‌‌‍is essential to a valid tender that the money be actually produced aud proffered to the creditor. But it is well settled, that the production of the money is dispensed with, if the party is ready and willing to pay the same, and is about to produce it, but-is prevented by the creditor’s declaring that he will not receive it; and the court should so have instructed the jury. *7032 Greenl. Ev. § 603 ; Hazard v. Loring, 10 Cushing, 267 ; Sands v. Lyon, 18 Conn. 18; Appleton v. Donaldson, 3 Barr, 381; 3 Blackst. Comm. note, p. 304.

Judgment reversed, and cause remanded.