Derby v. Bell

SOMERYILLE, J. The judgment record shows that the defendant abandoned certain pleas of tender previously filed by pleading in open court the general issue, with leave to give in evidence any matter that would be a defense, if previously pleaded. A plea of tender, under our statute, must aver the fact of the previous tender of the amount due, and that the defendant “now brings the money into court.” Code, § 9532, form 39. And, to be-availing, the evidence must show that the money has been paid into court as averred. Commercial Fire Ins. Co. v. Allen, 80 Ala. 571, 579, 1 So. 202. This requirement is equally binding whether the plea of tender is specific or whether the tender is to be availed of under a general plea in short by consent. Neither the repetition of the tender nor persistence in its refusal obviates the necessity of a plea of tender in the form prescribed by the statute, nor excuses the payment of the money into court. The necessity and mode of keeping a ten- • der good have been declared and explained in numerous cases. Alexander v. Caldwell, 61 Ala. 543; Park v. Wiley, 67 Ala. 310; Frank v. Pickens, 69 Ala. 369; Caldwell v. Smith, 77 Ala. 157; Maxwell v. Moore, 95 Ala. 166, 10 So. 444, 36 Am. St. Rep. 190; McCalley v. Otey, 99 Ala. 584, 12 So. 406, 42 Am. St. Rep. 87; Saunders v. McDonough, 210 Ala. 208, 211, 97 So. 622; W. O. W. v. Maynor, 206 Ala. 176, 178, 89 So. 750 ; 26 R. C. L. 646, § 27. None of the cases cited by counsel for petitioner is in conflict with the cases cited above. . While they affirm the exoneration of the debtor from damages and costs by virtue of his seasonable tender of the amount due (as in Clark v. Moses, 50 Ala. 326), they do not change, and did not intend to change, the rules of pleading iu tender cases. The judgment of the Court of Appeals is free from error, and the writ of certiorari will he denied. Writ denied. ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.