39 N.J.L. 413 | N.J. | 1877
The opinion of the court was delivered by
The principal question discussed in this case is whether, in actions upon contract for the payment of money, a sum less than the plaintiff’s demand can be tendered by the defendant after suit brought, so as to save costs subsequent to 'the tender; if the plaintiff fails to recover in excess of the sum tendered.
The practice of allowing money to be paid into court by the defendant, after suit brought, where the action is instituted to recover, upon a contract for the payment of money, was introduced in England in tlie reign of Charles II. In such cases, when the dispute is not whether anything, but how much, is due to the plaintiff, the defendant may have leave to bring into court any sum he chooses, and the .court will make a rule that, unless the plaintiff accept of it, with costs, in discharge of the action, it shall be struck out of the declaration, and paid out of court to the plaintiff or his attorney, and the plaintiff, upon the trial, shall not be permitted to give evidence for the sum brought in. This rule should be accompanied with the general issue or other plea to the residue of the demand. 2 Arch. Prac. 199; 1 Tidd’s Prac., (3d Am. ed.,) 619; Elliot v. Callow, 2 Salk. 597.
In Kay v. Panchiman, 2 W. Pl. 1029, the court declared this practice to be very ancient, citing in support of it a case from 2 Keble.
Lord Mansfield recognized this rule to be just and. reasonable in Hallet v. East India Company, 2 Burr. 1120, and held that if the -plaintiff refused to accept the sum tendered, with costs, he should proceed at his peril, and if lie. failed to prove more to be due him than the money brought’ in, there must.be a verdict for defendants.
This practice, borrowed from the King’s Bench, "prevails in Massachusetts. Boyden v. Moore, 5 Mass. 366 ; Williams v. Ingersoll, 12 Pick. 345.
In such case, if the plaintiff on the trial do not prove more due to him than the sum so paid, there must be a verdict for the defendant.
In this case, the summons was drawn by the plaintiff’s attorney,'on the 28th day of July, 1876, and laid upon his table to be delivered to the sheriff for service. On the 1st day of August, the defendant tendered the plaintiff the sum of $648.74. The jury found the debt due to the plaintiff, at that date, to be the sum of $647.27. The question is, whether $1.47, tendered in excess of the debt, was sufficient to cover the costs then accrued.
Without settling what the full costs would have been, it is enough to say that the plaintiff would have been entitled at least- to the following items:
Att’y. . CFIc.
Retainer, warrant of attorney, copy and filing. ..$1.17 ' .08
Summons, drawing and sealing......................34 .48
Entering action.....■................................... .10
In the latter case, the defendant must take care, at his-peril, to tender a sufficient amount, and if he does not, he must fail on the issue of tender submitted to the jury.
In the case now under consideration, the deficiency is very insignificant, but the defendant has no right to withhold anything due to the plaintiff, however small. This is not a case in which the maxim, “ de minimis non ourat lex ,” applies. The plaintiff was entitled to exact the full amount due him, and the offer of a less sum would not support the plea of tender.
In Boyden v. Moore, 5 Mass. 370, where the deficiency was forty-one cents, Chief Justice Parsons ruled that the tender was insufficient.
The sum offered on the 1st day of August having been less than the debt and costs, the defendant can derive no advantage from his tender.
The rule to show cause is refused, and the plaintiff has leave to enter judgment, with costs.