Davis v. Nelson's Estate

Start, J. The petition was presented to the Orleans County Court at the March Term, 1900, and therein the petitioner asks that the case of B. M. R. Nelson’s estate against him be brought forward from the docket of the September Term, 1898, and the record or docket entry therein be amended so that the defendant in said cause may recover costs that accrued after a tender was made. The County Court denied the prayer of the petition as a matter of law, and the case comes to this court on exceptions. It appears, that, after the original suit was commenced, the defendant therein made a tender to the plaintiff of the sum of two hundred and twenty-five dollars and paid the same into court. At the September Term, 1898, the cause was tried by jury and a verdict returned for the plaintiff to recover the sum of two hundred and four dollars and seven cents; and judgment was thereupon entered on the verdict. The tender was made under Y. S. 1691, which provides that the defendant in a civil action commenced in the County Court may, at least three days before the sitting of the court to which the writ is returnable, tender to the plaintiff, his agent or attorney, the amount of the demand for which suit is commenced, with the costs accrued at the time of making such tender; and, if the tender is refused, the defendant may give evidence of the same under the general issue in bar of the action, and on proof [330] thereof and payment of the money tendered into court, shall recover his costs. A tender under this statute is only available in bar of the action, and to have this effect, it must be insisted upon on the trial and evidence thereof given under the general issue; and, if not so insisted upon and proved, it is waived and of no avail to the defendant. Griffin v. Tyson, 17 Vt. 35. The case was • was tried by jury, and the issue of tender was for the jury, with the burden upon.the defendant. It was necessary for him to show, that he tendered the same sum that he paid into court to the plaintiff, his agent or attorney, at least three days before the sitting of the court to which the writ was returnable; and that the tender was refused and had been kept good. The plaintiff had a right to controvert these issues of fact before .the-jury. If such evidence was before the jury and insisted upon, it became the duty of the court to instruct them, if they 'found for the defendant upon the issue of tender, to return a verdict for the defendant; and, upon the return of such a verdict, the money in court would belong to the plaintiff. In Peck v. Soragon, 27 Vt. 92, the auditor found due the plaintiff one hundred and eighty-two dollars and twenty-five cents, and that the tender seasonably made and paid into' court exceeded the sum and costs. The. County Court rendered judgment for the defendant to recover his costs, and this court held that the judgment was correct. In Woodcock v. Clark, 18 Vt. 333, the tender was sufficient in amount, and this court reversed the judgment and rendered judgment for the defendant. In Randall v. Bacon, 49 Vt. 20, the tender was sufficient in amount, and the defendant had judgment for his costs. It does not appear that the tender was insisted upon, or that any evidence was given concerning it. In the absence of such snowing, it is considered that the mistake, if any, in not giving evidence of, and insisting upon, the tender before the jury, [331] was made on the trial and before verdict and judgment, and that such mistake cannot be corrected upon petition to amend the record or docket entry, for in these there is no mistake. Smith v. Hanscomb, 41 Vt. 74; Allen v. Thrall, 41 Vt. 79; Weeks v. Potter, 54 Vt. 318; Amazon Ins. Co. v. Partridge, 49 Vt. 121. The case of Spaulding v. Warner, 57 Vt. 654, relied upon by the petitioner, was an action of trespass and is not in point. A tender in such actions is authorized only by V. S. 1692, which provides for a tender of amends in actions of tort, and by its terms makes the defence of tender of sufficient amends dependent upon whether the court is of the opinion that the defendant acted in good faith in the matter complained of, and upon the discretion of the court. Adams v. Morgan, 39 Vt. 302. Judgment affirmed. October Term, 1901.