20 Wend. 47 | N.Y. Sup. Ct. | 1838
Very likely the defendant, when ' he made the tender, owed the plaintiff in the whole more than eighty-five dollars, but has succeeded, by raising technical difficulties, in reducing the report to that sum. Independent of that however, the tender was defective. It was clearly a tender to be accepted as the whole balance due, which is holden bad by all the books. 2 Phil. Ev. 7th ed. 133, 4. Evans v. Judkins, 4 Campb. 156. Cheminant v. Thornton, 2 Carr. & Payne, 50, and Peacock v. Dickerson, in a note, id. 51. Strong v. Harvey, 3 Bing. 304. Mitchell v. King, 6 Carr. & Payne, 237. The tender was also bad, because the defendant would not allow that he was even liable to the full amount of what^he tendered. His act was within the rule which says he shall not make a protest against his liability. 2 Phil. Ev. 7th ed. 134. Simmons v. Wilmott, 3 Esp. R. 91. He must also avoid'all counter claim,
That this defendant intended to impose the terms or raise the the inference that the acceptance of the money should be in full, and thus conclude the plaintiff against litigating all farther or other claim, the referees were certainly entitled to say. That the defendant intended to question his liability to part of the amount tendered, is equally obvious, and his object was at the same time to adjust his counter claim. It is not of the nature of a tender to make conditions, terms or qualifications; but simply to pay the sum tendered as for an admitted debt. Interlarding any other object will always defeat the effect of the act as a tender. Even demanding a receipt, 2 Phil. Ev. 7th ed. 134, or an intimation that it is expected, as by asking “ have you got a receipt '2” will vitiate. Ryder v. Townsend, 7 Dowl. & Ryl. 119. The demand of a receipt in full, would of course be inadmissible.
The books are sufficiently nice as to the manner of a tender; but I think the case at bar shows that they are not so without reason. The person making the tender may avoid all implication against the idea of a qualification, or other circumstance destroying his tender; by making it in writing, and even negativing that it is on any condition, or reserve, or intended to prejudice the plaintiff’s farther claim. Considering the exactness of the cases, and the chances to infer something against the defendant from the cross-examination of the tendering witness, Mr. Chitty advises to that course, with other cautionary steps in this respect. He even goes so far as to give the form of a notice which shall disembarrass the proceeding of all the clogs imposed by the cases. 1 Chit. Gen. Pr. 508, and note (i), Am. ed. of 1834.
The motion to set aside the report of the referees must be denied.
