Jaffe Jewelry Co. v. Ellsworth

WALKER, P. J. The plea which, not in any way being objected to for insufficiency, seems in the trial below to have been treated as a plea of tender, did not aver or indicate that there had been anything in the nature of a tender before it was filed. A tender, made and pleaded after suit has been brought on the demand, does not entitle the defendant to recover of the plaintiff that part of the court costs which had been incurred before the tender was made, as a defendant may not, by his failure to pay a debt due, put the plaintiff to the necessity of bringing suit for its collection, and then, after suit brought, by a tender of the amount due, cast on the plaintiff the burden of the accrued costs of suit already properly incurred by him.— Smith v. Anders, 21 Ala. 782; 28 Am. & Eng. Ency. Law (2d Ed.) 19. Under the written charge given to the jury at the request of the defendant they were bound, if they believed that the defendant had tendered the amount due at any time before the trial, to tax the costs of the suit against the plaintiff, whether incurred before or after the tender was made. For the reason indicated, the giving of that charge was error, without regard to any question as to its being otherwise faulty. But that error does not constitute-a. ground of reversal on this appeal. The defendant filed another plea, upon which issue was joined, setting up “that the said contract upon which this action is founded is usurious and void for the interest thereon.” It plainly appeared [469] in tbe course of tbe trial that it was the purpose of that plea to charge that usury infected the mortgage upon which, in the trial, the plaintiff rested its claim to the property sued for. The verdict of the jury, in the light of the evidence introduced, necessarily involved a finding that there was such usury. That being true, the judgment of the court assessing the costs of the suit against the plaintiff does not need the support of the finding in the verdict to that effect, as the court, without regard to that finding in the verdict, was authorized so to tax the costs by the statute providing that, “if it be made to appear that usurious interest has been intentionally taken or reserved, the defendant recovers full costs.”—Code 1907, § 3665. ■ It appears from the bill of exceptions that the verdict, after being put in due and legal form, was returned by the jury itself. The assignments of error which involve the assumption that the form of the verdict was changed by the court, or by the attorney for the defendant, after it had passed out of the control of the jury, find no support in the record. The defendant having paid into court $35, accompanying her plea of tender, and the verdict of the jury having ascertained that the unpaid balance of the purchase price due to the plaintiff for the property sued on was only $35, “under the plea of tender,” the plaintiff was not entitled to a verdict or judgment for the property sued for or its alternate value. On the evidence in the case, as set out in the bill of exceptions, this court would not be justified in deciding that the trial court was in error in overruling the defendant’s motion for a new trial. Affirmed.