Warrington v. Pollard

Dillon, Ch. J. tender: goodbykept ep0Slt' The only material question in the case is, whether the court below erred in taxing the defendant with the costs? The sum tendered was just equal to the sum recovered. Hence the amount tendered was sufficient to save the defendant from costs, provided the tender was kept good. It is settled by the prior decisions of this court, that, notwithstanding the statute, it is essential to keep the tender good by actually producing the money and depositing it in court where it may at any time be accepted and received by the creditor. Johnson v. Twiggs, 4 G. Greene, 97; majority opinion followed, Freeman v. Fleming, 5 Iowa, 460; Mohn v. Stoner, 11 id. 30; S. C., 14 id. 115, affirming Johnson v. Twiggs, Baldwin, Ch. J., remarking “ that it was not wise to overrule it, as it had been the settled practice of the State for ten years.” In principle Mohn v. Stoner (as reported in 14 Iowa, 115) covers this case. The money in that case was tendered before suit commenced, but not brought into court [283] until the trial, several terms having elapsed. Held, that the tender had not been kept good. In this case the amount tendered was not produced or deposited in court until after the trial had begun, and the plaintiff had finished his testimony, and the defendant had partly produced his. This was too late .to save the defendant from liability for costs. If the amount had been paid into court, as alleged in the answer, plaintiff might have accepted it, and thus the fees of the jurors and of his witnesses been saved. The tender was not good until the money was in court. At the time the money was paid in, costs had been made, not embraced in the amount tendered, and which accrued after the filing of the answer. To hold the tender good, would make the plaintiff liable for these costs, though they might never have been made had the money tendered been deposited in court concurrently with the filing of the answer. "Whether, were the question an original and undecided one, we would reach the same conclusion as to the effect of the statute, or as to the effect of the non-production of the money in court, we need not stop to discuss. This is one of those cases where certainty in the rule, heretofore adopted, is the paramount consideration. We adhere to the former rulings of the court on this subject, and this adherence results in affirming the judgment below. Affirmed.