Curtiss v. Greenbanks

By the Court. The auditor, in this case, has reported the sum of $52.44, as being the balance due the plaintiff on the 15th day of May, 1850. This balance, so far as the plaintiff’s account is concerned, is conclusive on both these parties, as no exceptions by the plaintiff were taken to the ruling of the auditor, in ascertaining that amount. We are, therefore, to regard that sum as the balance really due at that time to the plaintiff. The question arising in this case, is upon the tender of $53.44, made on this account, shortly before the commencement of this action. No question has been urged, but that a legal tender can be made in eases of this character, if all the legal formalities have been observed in making it. The auditor has reported, that at the time, the parties met for the purpose of making a settlement, that the above sum, as now allowed by the auditor, was then presented by defendant, as the balance due from him. On that occasion, the sum of $53 in bank bills, and 44 cents in change, was counted out, and placed with the account, on the table in the room, in the plaintiff’s presence, and he was informed that it was ready for him. If the character of the money tendered had been objected to, it is evident that it would not amount to a legal tender. The authorities, however, are 'uniform upon the subject, that a tender in bank bills is good, if the creditor places, his refusal to receive the money on other grounds, or makes no objection to the tender, on the express ground that it is in bank notes. The auditor [540] has stated, that no objections of that character were made, but were confined to the sum allowed for his wages. There can be no doubt either, but that there was a sufficient offer of the money to answer the requirements of the law in this respect. It was placed on the table in his presence, its amount stated, and capable of being taken into immediate possession, if he had been willing to receive it, and this was duly paid to the auditor, and is in court. This tender is good, and sufficiently conformable to all legal requirements, and particularly so, as no objections to any informality were made; and, unless made at the time, it will be a waiver of such objections, as well as of the character of the money tendered. Smith’s Mer. Law 625, 7. 4 B. & Ad. 546. 2 M. & W. 86. 8 M. & W. 298. 2 Greenl. Evid. § GOO to 604. The objections to this tender, are urged, first, that the amount originally tendered was $53.44, but the amount paid into court was but $52-44. This last sum is all that is really due the plaintiff, and all he can honestly demand, as found by the auditor-. The amount of the indebtedness as agreed to by the defendant at the time of the tender, was really less by one dollar-, in consequence of the last item in defendant’s account not being then reckoned, as the defendant was then ignorant of the charge, but it was within the knowledge of the plaintiff,, and which he suppressed. It is not for him, therefore, to insist upon an acknowledgement so made by that tender, under an ignoz-ance of facts, which it was his duty at that time to have removed. The defendant has done all that should be requiz-ed of him to do, to be ready at all times to pay the aznount really due, when demanded, and at the pi-oper tizne to pay the same into court. It has also beezz objected, that this tender is of no avail, from the fact, that the money paid into court, was not the identical money previously offered or tendered. And it has been insisted, that to keep a tender good, the party must keep the identical money offered, ready to be paid over, on demand, or in a proper 'time to pay the same in court. This principle, whatever may be the rale in-relation to the tender of specific articles, can have no application to the tender of money, or that which the parties have treated as equivalent to tlie current coin of the country. It is to be borne in mind, that a tender of money does zzot extinguish the debt. It simply bars the claim to damages and interest, and the costs of an action, if the matter is prosecuted. [541] By the tender, if refused, the money does not become the property of the person to whom the tender is made. Hence, the person tendering is at liberty to use it as his own, all he is under obligation to do, is, to be ready at all times to pay the debt in current money, when requested. In this respect, there is an important distinction between the tender of money and that of specific articles. In the case of specific articles, a tender duly made, is a discharge of the debt. The title to the property thereby passes to the person to whom the debt is due, whether accepted or not. For this reason, the property tendered cannot be retaken, or disposed of in any way by the person tendering. This distinction, clearly established by the authorities, affords a sufficient reason why the identity of the money in this case, becomes immaterial, for that particular money was never the plaintiff’s. It remained the property of the defendant, on -the refusal to accept it. All that the plaintiff can ask of the defendant to do, and all the defendant is required by law to do, to keep good his tender, is, to be ready at all times, when requested, to pay the debt in the current coin of the country, or when prosecuted, to pay the same into court, and this the case finds to have been done by the defendant. From the facts reported by the auditor, we think the tender was sufficient, and constitutes a good defense. The judgment of the county court must be reversed, and judgment rendered for the defendant on the report.