Barker v. Brink

Weight, C. J. We think this judgment must be reversed. Before the justice, the defendant relied alone upon the fact, that he had paid the note. In the district court, there was no further pleadings, nor was any other issue made. The jury, however, returned what is styled a special verdict, in which they find that there was a tender of the stock. We do not stop to inquire whether such finding is sufficient to justify a judgment for defendant, if there had been an answer setting up the tender. This may well be doubted. But when we look at the state of the pleadings, all doubt is removed. We would not hold, 484 and never have held, parties to strict rules of pleading before a justice; but, in this case, the difference between the defence of payment, and that of tender, is too broad and dear to be overlooked. Payment implies an acceptance and appropriation of that which is offered by one party to the other; whereas, tender is the act of one party, in offering that which he admits to be due and owing, but which is not accepted by the creditor. The tender does not discharge or satisfy the debt, whilst payment does. Tender must be plead specially, and such plea must not only aver the offer to pay, but show a continued readiness to keep good the tender made. In this case, defendant relied upon his averment that he had paid the note, but nowhere does it appear from the pleadings, that before the justice, or in the district court, he relied upon a tender of the stock therein mentioned. Under such circumstances, the jury had no right to find as they did, and the court could not reduce such irregular and unwarranted verdict to form, and render judgment thereon for defendant. Without giving other reasons for this conclusion, we think the case must be reversed and remanded. Judgment reversed.