171 Mich. 268 | Mich. | 1912
This cause is before us on a writ of error to the circuit court of St. Clair county without a bill of exceptions, the printed record consisting of the files and
There were no further pleadings in the cause, but two days before trial in the circuit court the defendant tendered into court $100.05 and filed notice with the clerk of said court that such tender was made subject to garnishee proceedings pending and set forth in his said plea, also to all liens of J. W. Bennett, attorney for plaintiff herein, and all liens defendant himself might have by virtue of taxable costs. The record shows that this suit was tried before a jury, a verdict being rendered in favor of the plaintiff and against defendant on May 25, 1911, for the sum of $120.46, which verdict was duly entered on the journal of said court and signed by the judge thereof. On July 17, 1911, plaintiff, through his attorney, moved the court for judgment on said verdict for the amount thereof, with costs, refusing to accept or recognize said alleged tender because the verdict exceeded the sum of $100, and plaintiff’s claim was not reduced by set-off to less than $100, and no tender of any sum was made unconditionally. This motion was denied by the court, and judgment en
Error is assigned on the entry of judgment for a different and lesser amount than the verdict of the jury and on the refusal of the court, after plaintiff renounced all claims to the sum conditionally tendered, to grant his motion for a judgment for the full amount of the verdict. In denying the plaintiffs motion that the court direct the clerk to pay over to him the amount of tender, the learned circuit judge filed reasons, it being his opinion that some notice should first be given, and supplemental proceedings had to determine the rights of any claimants to the fund. No further, reasons appear to have been given for denying plaintiff’s subsequent application for full judgment on the verdict after renouncing any interest in or claim to said tender. The alleged tender was conditional, and, under the conditions, in no sense subject to plaintiff’s acquisition or control. The court properly refused to invade the conditions and order the clerk to pay it over to plaintiff.
Plaintiff could not be required to accept or recognize a conditional tender made after the pleadings were concluded. The tender did not conform to the provisions of the statute. Sections 10405, 10406, 3 Comp. Laws. A tender, to be effective, must be without qualification or condition. Noyes v. Wyckoff, 114 N. Y. 204 (21 N. E. 158); United States v. World’s Columbian Exposition (C. C.), 56 Fed. 630; Irvin v. Gregory, 13 Gray (Mass.), 215.
The alleged tender was not regular, was not sufficient in amount to cover the verdict, irrespective of costs. Plaintiff did not recognize it as a valid tender, did not receive it, acquired no control over it, and renounced all claim to it before asking judgment. It belonged to defendant to make such disposition of as he saw fit, so far as any rights between him and plaintiff in this suit were involved. As a tender it was immaterial, negligible, and invalid. It should have been so treated by the court, Plaintiff, to preserve his rights, was entitled to have judgment rendered and recorded in his favor for the full amount of the verdict. If in any way under judicial control, the disposition of the alleged tender was a matter for other and subsequent proceedings.
On the record before us the judgment must be reversed, with costs in favor of plaintiff. The cause is remanded, with direction to set aside the judgment heretofore rendered, and enter judgment in accordance with the verdict of the jury.