Mahler v. Newbaur

By the Court, Sawyer, J.: The defendant Newbaur executed the mortgage sought to be foreclosed, to the plaintiff. He subsequently mortgaged the same premises to Steinberg, who assigned to defendant Myres, and afterwards sold and conveyed to defendant Ellsasser. The defendants set up as a defense, a tender to the-plaintiff, on behalf of Ellsasser, of the full amount due, after the law day of the mortgage, and a refusal of the plaintiff to receive it. The testimony of the plaintiff tends to show the tender set up. But upon the point, as to whether the plaintiff was informed that the tender was made on behalf of Ellsasser, the testimony is conflicting. There is no pretense that any tender was made on behalf of Newbaur or Myres. A 170 party having no interest in the premises, or tender made, has no right to make a tender. The plaintiff would not be bound to regard a tender made by, or on behalf of, a stranger to the transactions. (Walkins v. Ashwicke, 1 Cro. Eliz. 132.) When a tender is in fact made by a stranger, and not the party in interest, it would seem to follow that the creditor must be informed on whose behalf it is made, otherwise he would not be required to accept the money, or reject it at his peril. Plaintiff testifies that he was not aware that Ellsasser had any interest in the mortgaged premises; that his name was not mentioned when Williams made the tender; and, that he supposed at the time, that Williams was acting on behalf of Myres. The note, in obedience to which plaintiff called upon Williams to receive the money due, tended to produce' that impression; for it stated that “ the parties in San Francisco have forwarded to me the amount of your mortgage on Newbaur’s property, and I wish you to come to-morrow and I will pay you." Ellsasser resided at Victoria, Vancouver’s Island. Myres was the only party residing at San Francisco, and no tender was made on his behalf. It is true, Williams testifies that he informed plaintiff that the tender was on behalf of Ellsasser. But there is a plain conflict on the point, and the Court determined the question of fact in favor of plaintiff. This question appears to have been made in the Court below and was one of the grounds upon which, after reconsidering the testimony, a new trial was denied. In specifying the grounds of the decision deny- * ing a new trial, as required by law, the Judge says: “ I am not satisfied that at the time of the tender the plaintiff knew that the money was tendered by or on behalf of the defendant Ellsasser. We cannot disturb this finding on the evidence in the record. The tender having been made by a stranger, without informing plaintiff on whose behalf it was made, was invalid. The tender is not aided by the fact that plaintiff supposed it made on behalf of Myres, who was entitled to make it, for it was not in fact made on his behalf. On the ground indicated the judgment must be affirmed, and it is 171 unnecessary "to determine whether under the provisions of our statute relating to the character of mortgages a tender after the law day discharges the mortgage, as was held in Kortright v. Cady, 21 N. Y. 343, and Caruthers v. Humphrey, 12 Mich. 277. (See Hayes v. Josephi, 26 Cal. 545.) Judgment and order denying new trial affirmed.