Conrad v. Burbank

Howell, J. Two questions are presented in this proceeding, to wit: First — Can a judgment b© rendered, on motion, for the amount of the original demand admitted to be due, reserving to plaintiffs the right to prosecute their claim for the balance 9 This is no longer an open question. The amount admitted is not a matter of dispute, and the only issue to be tried is the sum not admitted. The plaintiff is at any time after the admission is made, entitled to a decree for such amount as confessed. The fact that the admission is made upon an account consisting of various items, no one or more of which are specially admitted to be due and correct, does [18] not affect the question. The defendant is supposed to have presented his claim and rights in the most favorable light to himself. 4 R. 144; 5 R. 447; 11 An. 746. Second — Can interest be allowed on the amount admitted when it is not specially included ? This, top, has been settled affirmatively. 4 R. 144; 2 An. 441. By the law all debts bear interest at the rate of five per cent, from the time they become due, uniess otherwise stipulated. ]$. S., § 1883. To be relieved from payment of this interest, it was incumbent on defendant to allege a tender made in accordance with law. C. P. 404, 407, 413, 415; R. C. C. 2167,2168. The vague allegation that he “tendered to plaintiffs the balance of the amount due to them by said accounts, which said plaintiffs refused to receive unless respondent would accept from them au-eceipt in a prescribed form,” does not show how the' tender was made, nor relieve defendant from liability for interest. Judgment affirmed.