Foote v. Palmer

WRIGHT, J. By our statute, a tender of the money, due before suit brought, and bringing the money into court, bars the plaintiff’s right to recover, and subjects him to a judgment for costs. It is not disputed here, but that the money due was tendered, and brought into court. The only question is, was the tender rendered of no avail, because not accompanied with the costs of the first suit? It is contended, that, inasmuch as the tender was not available in the suit pending, when it was brought, it is not so now, and Hay v. Ousterhout, 3 O. 384, is relied upon as so deciding. That case does not so decide; there was a tender after suit of the debt and costs, and so found, and it was held good. The facts here present the tender in two aspects. 1st. As to the debt; and, 2d. As to the costs. The debt was tendered while the first suit existed, and was kept good from thence to the trial and judgment in the Court of Common Pleas. If the plaintiff would have avoided the ^effect of the tender for the debt, because unaccompanied with [337 the costs of the suit then ¡sending, he should have prosecuted that suit, and not suffered it to go off on a non suit, and bring another. With these costs, we have now nothing to do. We cannot correct them with the tender of the debt, nor with the subsequent suit so as to subject his debtor. The money was always ready for him on request, if he had chosen to take it, and was in court when he non suited himself; why did he not take it? He had no other demand. But that suit, in reference to the tender, is as if never brought. The court erred, therefore, in giving judgment for costs, and in finding that the defendant did not tender; and for this error, the judgment is reversed, with costs.