Green v. Shurtliff

The opinion of the court was delivered by Hall, J. The first question in the case is as to the sufficiency of the plea of tender. The plea professes to answer the whole declaration ; and, unless the plaintiff’s whole claim is of a character to which a tender may be properly pleaded, the plea must be deemed insufficient. [596] The statute, under which this tender was pleaded, (Rev. Stat. chap. 106, sec. 6,) was not, as we think, intended to extend the right of making a tender to other actions, than those in which a tender might be made at common law; but the object of it was, to allow a tender after action brought, — which, without the statute, could not be made. There seems • to be no doubt in regard to the principle, upon which a tender is allowable at common law. It may be made in all cases, where the demand is in the nature of a debt, where the sum due is either certain, or is capable of being made certain by mere computation; but is not allowed, where the action is for unliquidated damages, the amount of which is to be determined by the exercise of discretion by a jury. Chit, on Cont. 793. 3 Stephens’ N. P. 2599. It seems too manifest to require argument, or illustration, that the breaches of the condition of the recognizance in this case, assigned in the declaration, embrace both these descriptions of claims. The additional costs named in the recognizance are mere matters of computation; while the intervening damages, which depend upon the loss the plaintiff may have sustained by the delay, in the failure of the collection of his debt, either in whole or in part, by the change of circumstances of the debtor, are manifestly unliquidated damages, which it is peculiarly the province of a jury to estimate. To this part of the claim we think a tender could not be made; and as the plea of tender applies to this part of the declaration, as well as to the others, we feel constrained to hold it insufficient and bad. It is not intended to say, that a plea of tender could not, under any circumstances, be available in an action upon a recognizance of this description. It has long been held in this state, that a matter of defence, which goes only to a part of the plaintiff’s claims, may be pleaded to so much as it tends to meet. State Treasurer v. Holmes, 4 Vt. 110. In Carpenter v. Briggs, 15 Vt. 34, which was debt on a jail bond, it was held, that a plea of payment of a part of the plaintiff’s claim was good for so much of the declaration, as it professed to answer ; but, as there was no answer to the residue of the declaration, the plaintiff had judgment. If the defendants, in this case, had pleaded a tender of the additional costs, and traversed [597] the assignment of the breach for intervening damages, it is not seen why the whole declaration would not have been well answered. In such case, if the plaintiff failed to prove any intervening damages, the defendants would have had judgment. But if there were intervening damages, the tender would, of course, have been unavailing. We see no mode, consistent with the principles of law and the rules of pleading, by which any greater effect could be given to a tender, in cases of this description, than to make it effectual, where there is no real claim for unliquidated damages. This decision upon the substance of the plea renders any examination of its particular alleged defects unnecessary. The plea of tender having been overruled by the county court, a question arose, upon the assessment of damages, in regard to the admission of evidence; upon which the plaintiff excepted to the ruling of the court; and that question has also been argued before us. The plaintiff having introduced the execution issued at the date of the judgment in the original suit, with the officer’s return of nulla bona thereon, the defendant was allowed to prove, notwithstanding such return, that the debtor had, at the date of the judgment and of the return, personal property, subject to attachment, upon which the execution might have been levied. The inquiry as to the condition of the property of the debtor was proper, in ascertaining the damages the plaintiff had sustained by the delay ; and we do not think the defendants were estopped, by the officer’s return, from showing the real condition of the debtor’s property. The result is, that the judgment of the county court is affirmed. . Both parties having excepted, and the exceptions of neither having prevailed, neither is entitled to costs in this court.