85 Neb. 255 | Neb. | 1909
This is an action to foreclose a mortgage. The note to secure which the mortgage was given was made by the Waterloo Lodge No. 102, A. F. & A. M., for the sum of $2,000, dated August 19, 1902, and due five years after date, with interest at 6 per cent., and was payable to the Citizens State Bank of Waterloo, or order, at its banking office in Waterloo, Nebraska. The mortgage securing the note contained an agreement that the mortgagor “may pay one hundred dollars or any multiple of that sum at any interest pay day.” The annual interest was paid to August 19, 1905. The 19th day of August, 1906, fell upon Sunday. On the 18th of August Mr. Wilkins, master of the lodge, went to the office of the Citizens State Bank of Waterloo and tendered to Mr. H. B. Waldron, the cashier, $2,120 in full payment of the note and interest, under the provision allowing the payment of $100 or any multiple upon any interest pay day. Mr. Waldrou refused to re'ceive the principal, giving as a reason that the note was not due for a year, but he accepted the $120 interest. On Monday, the 20th, the $2,000 principal was again tendered at the same place with 85 cents as accrued interest. This was also refused. Mr. Waldron was then informed that the money would be placed on deposit at the Bank of Waterloo subject to the order of the Citizens State Bank, and this was immediately done. The money remained on deposit until August 19, 1907, when it was withdrawn, and again taken by Mr. Wilkins to the office of the Citizens State Bank and tendered to Mr. Waldron. At this time Mr. Waldron refused it, saying that the amount was insufficient. He was again notified that the money would be on deposit at the Bank of Waterloo as before, and it
1. Appellant first contends that the tender of August 18, 1906, was premature because the interest pay day was August 19. The refusal to accept the money, however, was not made for this reason, and the plaintiff, having-accepted the interest upon the 18th, cannot now say that, while the tender as to the interest was not premature, the tender as to the principal was. Moreover, the 19th was on Sunday, and the tender Avas reneAved on Monday.
2. The next point made is that the tender of November 2 wfis of .no effect because made after the suit Avas commenced. There is nothing in the record to show at Avhat hour on November 2 the petition in this case was filed or summons served.
3. The next contention is that the tender of August 20, 1906, Avas not kept good. The money tendered on August 20, 1906, was immediately deposited in the Bank of Waterloo to the credit of the Citizens State Bank, and was there at all times ready for the plaintiff until on and after October 28, 1907, when a financial panic occurred and nearly every bank in the United States suspended payment of actual money, except in small amounts. Taking advantage of this condition of affairs, the president of the plaintiff bank .demanded the deposit from the Bank of Waterloo within an hour before the close of banking-hours, and at a time AAdien it may safely be presumed he
4. The principal point argued in the appellant’s brief is that the use of the money tendered by the Bank of Waterloo defeats the tender, and it is insisted that, since the money was deposited with the bank as a general deposit, commingled with the general funds of the bank, and not kept as a special deposit, the tender was not kept good. Assuming that it was necessary to keep the tender good, we think there is no merit in this contention. All that the creditor could ask for after his refusal of the tender was that the debtor should have the money ready to pay over to him upon demand, or within a reasonable time thereafter. The identical currency which had been tendered did not become the property of the creditor upon his refusal to accept the tender. It was unnecessary, therefore, to make a special deposit of it with the bank. If the defendant had used this money, and been unable to meet the demand within a reasonable time, the result would be different, but this was not the case here. It is clearly shown that the defendant received no interest or advantage from the deposit of the money. It was subject to the creditor’s demand at any time up until October 28, the day the evidence shows banks generally suspended payment in gold or currency. The fact that the money was in the bank as a general deposit in nowise prejudiced the plaintiff or interfered with its rights. It could have had the money any day for 14 months, and it was only when in all probability its officers knew it could not be brought forth immediately that it manifested an inclination to accept it. Davis v. Parker, 14 Allen (Mass.) 94; Cheney v. Libby, 134 U. S. 68; Kerr v. Moore, 6 Cal. App. 305, 92 Pac. 107; Shields v. Lozear, 22 N. J. Eq. 447; Dickerson v. Simmons, 141 N. Car. 325.
This being so, under the provisions of the code the offer to confess judgment was amply sufficient without paying the money to the clerk of the court at the time the offer was made, and defendant was relieved from all costs and interest accruing thereafter. It is true that in actions to redeem, in actions of ejectment against the mortgagee in possession, and like proceedings, it has frequently been held that the amount due must be brought into the court with the filing of the bill or of the petition, but this is a case of a different character, and the cases cited by the
We are of opinion that the offer to confess judgment and the tender made that day were ample in amount to cover all that plaintiff was entitled to recover.
The judgment of the district court was right, and is
Affirmed.