Martin v. Whisler

Day, Ch. J. The court certified the question upon which’ [417] it is desirable to have the opinion of this court as follows: “Where an action was brought upon a parol contract, which ha& been merged in the written award of arbitrators, and in which action the defendant in Ms answer denied the right of plaintiff to sue or recover on the original contract, and plead the award, and deposited the amount thereof, without any costs, in the hands of the justice, on the filing of his answer, which party is liable for the costs made on the trial of the case before the justice?” The defendant insists that the tender was made upon the award, and not upon the cause of action sued upon; that the plaintiff could not have recovered upon the cause of action sued upon, and that, consequently, it was not necessary for the defendant, in order to avoid the payment of costs, to tender the costs accrued at the time of the tender. The defendant, however, made a tender in the action, and thus admitted liability upon the cause of action sued upon, to the extent of the tender. It may be that, if the defendant had relied upon his denial of the plaintiff’s cause of action, he could have prevented the plaintiff from recovering thereon. But, having made a tender of a sum which he admits to be due, he should, in order to avoid liability for costs, have tendered the costs which had accrued at the time of the tender. See Freeman v. Fleming, 5 Iowa, 460; Warrington v. Pollard, 24 Id., 281; Barnes v. Greene, 30 Id., 114. Under the facts certified to us by the court below, the defendant is liable for the costs made in the justice’s court. Affirmed.