Hoyt v. Sprague

By the Court, Cardozo, J. Allen v. Smith, (12 Com. B. R., N. S., 638,) relied on by the defendants, is certainly an authority in their favor, but I think it cannot be sustained, to its full extent. It certainly is not in accordance with the rule laid down by the privy council in The Norway, (1 Browning & Lushrington, 409,) in which Allen v. Smith was cited, and must therefore be deemed overruled, so far as it conflicts with the later case'. In the Norway, the court, through Sir Edward Vaughan, said: “ If the demand of the larger sum was so made that it amounted to an announcement by the master that it was useless to tender any smaller sum, for that if tendered it would be refused, that would amount to a dispensation with any tender, generally speaking.” In that case, it appeared that the plaintiffs had resolved not to tender the whole amount which.the court held the defendants were entitled to; and speaking of that fact, the [506] judge proceeded to say: “ However, we are not prepared to hold .that this varies' the ordinary, rule which we have stated, as to dispensing with the tender altogether, by announcing that it will be useless to 'tender anything less than the wrongfully large amount insisted on.” [First Department, General Term, at New York, January 1, 1872. In this case there was an absolute refusal to deliver the wheat, unless the full amount of freight was paid.' The payment of the freight and the delivery of the goods, are to be concurrent in point of time, and the carrier had no right to say that he would retain the goods till he received a sum he was not entitled to. Whether the deductions to which the plaintiffs were entitled under the bill of lading were large or small, is not material, because the carrier refused to allow any deductions at all, and claimed to retain the property until the whole freight was paid. The true rule I take to be this: that the mere assertion, unaccompanied' by any other act, of a lien greater in amount than the lienor is entitled to, will not obviate the necessity of a tender;1'for it may be that the right amount would be accepted; but when, as here,-there is an absolute refusal to deliver up property unless a claim to which the party is not entitled is discharged, so that it appears that the lien claimant says, in effect, do what you will; tender any amount you please; unless it be the. whole of my unlawful demand, I will not accept it, nor surrender your property; then the law dispenses with the idle ceremony of making a tender .which the claimant, in advance, declares he will not accept, and an action may be brought immediately. I think the judgment should be affirmed.- Ingraham P. J., and Cardozo, Justice.]