| Ala. | Dec 15, 1880
It is a correct general rule of law, that every tender of .money, by a debtor to a creditor, must be absolute, and not coupled with conditions. It must not be offered in full of all demands, or on condition that' the creditor return the necessary change, or execute a release, ór on other similar terms leading to the embarrassment of the creditor’s legal rights. — 2 Greenl Ev. § 605; Bakeman v. Pooler, 15 Wend. 637" court="N.Y. Sup. Ct." date_filed="1836-10-15" href="https://app.midpage.ai/document/bakeman-v-pooler-5514677?utm_source=webapp" opinion_id="5514677">15 Wend. 637. If, however, the condition interpolated is one not prejudicial to the creditor, and on which the debtor has a right, under the contract, to insist, it does not vitiate the tender.—Wheelock v. Tanner, 39 N.Y. 481" court="NY" date_filed="1868-09-05" href="https://app.midpage.ai/document/wheelock-v--tanner-3609805?utm_source=webapp" opinion_id="3609805">39 N. Y. 481; Saunders v. Frost, 5 Pick. 259.
But a tender was authorized, by common law, to be made, only in those cases where the demand is in • the nature of a debt — where the sum due is' either certain, or capable of being made certain by mere arithmetical computation. Green v. Shutliff, 19 Vt. 592" court="Vt." date_filed="1847-05-15" href="https://app.midpage.ai/document/green-v-shurtliff-6573728?utm_source=webapp" opinion_id="6573728">19 Vt. 592. It could not be pleaded in an action on the case, nor in any action brought strictly for the recovery of unliquidated damages.—Searle v. Barrett, 2 Ad. & El. 82; 7 Wait’s Actions & Def. 577. The only exception to this rule, which seems to be made by statute, is in cases of slander, where a tender is permitted by the defendant, on his accompanying it with a recantation. — Code (1876), § 2993.
The design of the tender, made by the appellee to appellant in this case, was to divest the title of the property, for the specific recovery of which this action was instituted. It would clearly have been insufficient, for the reason that there was no production of the money, had objection been interposed on this ground. The only objection raised by the charge given by the court, and the charge requested by appellee and refused, is, that the tender was conditional, and not absolute. This specification of one particular defect was a waiver of all others. — 2 Parsons on Cont. 645.
The condition, with which the tender made by Ryan was clogged, was prejudicial to the appellant, Wilhite. The evidence discloses the fact of a controversy between the parties, as to whether or not the machinery had been damaged by appellant, and the extent of the alleged damage. The appellant denied that it was his duty to keep it iu repair. The
The Circuit Court erred iu giving the charge excepted to, and in refusing to give the charge requested by appellant. For these erroneous rulings, tbe judgment is reversed, and the cause remanded.