Collier v. White

Cooper, J., delivered the opinion of the court. The judgment in this cause must be reversed. The offer by White before suit brought to pay by a check the sum he admitted to be due by Tanner, and which he had agreed to pay, was not a tender sufficient in law. The sum paid into court by White after suit brought was insufficient to defeat the plaintiff’s right to recover to the extent of the sum admitted to be due by White. No tender was made of the accrued costs, and if such sum had been tendered, the plaintiff by refusing to accept the offer would' not preclude himself from recovering to an,amount to which the evidence showed him to be entitled. Refusing the tender as made, he could not recover costs, unless he secured a verdict for a greater sum than that admitted. On the facts of this case the plaintiff should have had judgment, at least for the sum which White had agreed with Tanner to pay. Judgment reversed.