Gray v. Angier

Warner, Chief Justice. The plaintiff brought suit against the defendant’s intestate on a certain instrument in writing therein described and set forth, and on the trial thereof the juiy found a verdict in favor of the plaintiff for the sum of $8230.50 principal, and the sum of $6583.44 interest. A motion was made for a new trial on the grounds therein stated, which was overruled, and the defendant excepted. The only ground of error insisted, on here was, that the verdict for interest was too large, in view of the evidence in regard to the alleged tender of the money by the defendant to the plaintiff, and that the court erred in its charge to the jury in relation to that point in the case. The evidence in the record is that two tenders of the money in payment of the debt were made to Solomon, who was then the owner of it, by Field, one of the defendants who then owed the money, and that Solomon declined to receive it, the witness stating “that 1 used the money tendered Solomon in other ways, when Solomon refused to accept it.’’ The tender relied on to stop the interest should have been a continuing tender, that is to say, that the money tendered was, and always has been, ready for the plaintiff, and not as in this case used by the defendant for his own benefit. Chitty on Contracts, marginal page, 697; 10 Ga. Rep., 127; 50 Ib., 614; 54 Ib., 498. There was no error in the charge of the court in relation to this point in the case. Let the judgment of the court below be affirmed.