Cotter v. O'Connell

Day, J. I. Appellant insists that plaintiff has mistaken bis remedy. It is urged that be should have set up tbe fact of tbe acceptance of tbe tender under tbe provisions of sections 3212, 3213 of tbe Code, and moved thereon for a dismissal of tbe appeal in tbe Supreme Court. We are, however, of tbe opinion that, while tbe plaintiff might have pursued that course, he is not confined to that remedy. 1. tender: judicial sale. II. Appellant mainly relies upon tbe fact that tbe tender was accepted, not in satisfaction of tbe entire demand, but merely in discharge of what remained after creeliting the judgment with the amount of tbe sale. This position of appellant is not tenable. The amount accepted was very largely in excess of tbe unsatisfied portion of tbe judgment, and must have been known to tbe attorney of O’Connell to be so. It was within a few cents of tbe amount of tbe judgment, interest, and costs, less the attorney’s fee. It was tendered and was in custody of tbe clerk in full satisfaction of the amount of tbe claim. Tbe clerk bad no authority to pay it out except in full satisfaction of tbe demand, and tbe evidence shows that be refused to do so. McGuire, tbe attorney of O’Connell, bad no right to tbe tender except as in full discharge of tbe claim, and when be accepted it tbe claim was, in law, discharged. It is claimed that it is improbable that McGuire, as attorney for O’Connell, would accept one hundred and eighty-two dollars and seventy-two cents in full settlement of tbe case, when be bad 555 already made one hundred and ninety dollars, on the judgment through the sheriff’s sale. But that sale had been set aside, ,a¿id, to say the least, the validity of it was in great doubt. The defendant, having accepted satisfaction of the-claim, was properly held to account for the proceeds of the sheriff’s sale. Affirmed.