Fertilizer Co. v. . Brock

Clark, C. J. The tender by defendant Brock of judgment, he contends, was conditioned upon its being taken by plaintiff in full satisfaction, so far as he was concerned, of the claim set out in the complaint. The judgment of the court ignores such condition and gives judgment for the one-half (deducting payment of $419), and reserves for future trial and determination plaintiff’s claim for the balance of the amount sued on. A tender of judgment of an amount less than the amount sued on, in full satisfaction, is like a tender of cash for a less amount than is claimed by the- plaintiff. A plaintiff cannot reap the benefit of such tender made by a defendant without accepting its burden as well. In such case the judgment must be set aside fin its entirety unless it is admitted by the plaintiff to be in full of his demand in accordance with the tender. Cline v. Rudisill, 126 N. C., 523. In Stewart v. Bryan, 121 N. C., 46, where the complaint sets up two causes of action — one for indebtedness due on a note, and the other for fraudulent conversion of money — it was held that a judgment entered by default was presumed to be on the note, as a judgment by default final could be entered thereon, but the cause could not be retained as to the charge of fraud, as to which there is no such presumption. In 23 Cyc., 731, it is held that where the defendant in his pleadings admitted the plaintiff’s cause of action against him to a specific limited amount, the latter will be entitled to take judgment on that amount, but the admission must be distinct and unequivocal and not conditional, and that where the defendant’s answer admits the justice of a portion of plaintiff’s demand, the plaintiff, while entitled to take judgment for *171 tbe amount so admitted, to be due, could not proceed to trial upon tbe remainder of tbe claim at common law, but added tbat tbis bas been permitted by statute in several States, wbicb are there cited, especially Alabama, Louisiana, New York, Obio, Pennsylvania, and Wisconsin. It would seem tbat, upon tbe facts in tbis case, tbe rule laid down in tbe States above cited, allowing judgment for tbe amount admitted to be due, and reserving for jury trial tbat wbicb is not admitted, might be tbe more logical and better course; but upon tbe authorities tbis was not allowed at common law, and as we have no statute making a change in tbis respect, tbe judgment rendered in this case must be set aside. Tbe plea of tbe defendant must be taken as intended to be conditional upon its acceptance in full of tbe plaintiff’s entire demand, and, not having been so accepted, tbe entire case must stand to abide tbe decision of tbe jury. New trial.