Brown v. Mead

THOMPSON, J. This is an action of trespass, commenced August 20, 1894. February 14, 1893, the plaintiff commenced an action against the defendants for the identical trespasses included in this suit, returnable to the Chittenden county court, and the same was duly entered therein. To that action the defendants pleaded the general issue, and gave notice of a tender of amends of forty dollars, which they made to the plaintiff, February 10, 1893, and that they should rely thereon in defence. This sum was paid into court, and the plaintiff’s attorney received the same from the clerk of the court, and in the receipt he gave for it, directed the suit to be discontinued. Subsequently, at the September term of that court in 1893, the matter came up for hearing, and the court rendered judgment that the action be discontinued with costs to the defendants. The county court held that these proceedings were a bar to the present action. The plaintiff contends that in this there was error, because his attorney had no authority from him to take the tender and discontinue the suit. R. L., s. 1450, (Vt. St., s. 1692), provides for the tender, in cases of this character, of amends to the plaintiff, his agent or attorney. A fair construction of the statute must include an attorney of record in a suit to recover damages for which a tender of amends may be made under the statute, and if such tender may be made to him, clearly he may receive the same. At common law, there could be no tender in this class ot cases. The purpose of the statute was to place them in re [218] spect to tender, upon the same footing as cases in which a tender could be made. A fender under it has no greater force than a common law tender. A tender accepted is ■only a payment fro tanto. If the plaintiff had taken the tender when made to him, he could have maintained an action for any balance of damages remaining. The acceptance of the tender by his attorney was the same as an acceptance by the plaintiff, but nothing more. The attorney, as an incident of his employment, could take the tender, but he could not discontinue the suit as he did, without authority from the plaintiff. It does not appear that he had such authority. This discontinuance can have no greater effect than a non-suit. Hence the forty dollars must be applied •on the damages, and the plaintiff recover for the residue thereof. As we construe the facts found by the court below, we do not think the plaintiff is entitled to recover treble damages. Judgment reversed, and judgment for the flaintiff for twenty-three dollars and twelve cents and interest thereon from the dale of judgment below, and his costs.