Sims v. Hardin

Anderson, J., delivered the opinion of the court. This is an action by the appellees W. H. Hardin and J. M. Fondren against appellant A. J. S'ims, ex-chancery clerk of Calhoun county, for ninety-three dollars and seventy-two cents balance of an alleged tender remaining in the hands of appellant, made by appellees in a cause theretofore pending in the chancery court of Calhoun county, said alleged tender having been deposited with appellant, who was at that time chancery clerk of said county. The suit was brought in the court of a justice of the peace of Calhoun county, and from that court appealed to the circuit court of that county, which latter court transferred the cause to the chancery court of the same county, where the pleadings were made to conform to the practice of that court. There was a trial on bill, answer, and proofs and. a decree rendered for the appellees for the amount sued for, from which decree appellant prosecutes this appeal. The question arose in this manner :■ On the 21st day of May, 1919, a final decree was rendered by the chancery court of Calhoun county .in a cause then pending in that court in which appellees were complainants and J. F. Ross and L. E. Bates were defendants. In their bill filed in said cause appellees alleged that they had tendered to the defendants in said cause, in satisfaction of their claim against appellees one thousand five hundred ninety-six dollars and sixty-five cents, which tender defendants had declined, and alleged further that the amount so tendered [141] was the true amount due by them to the defendants in said cause, which they were ready and willing to pay, tender of which they renewed an<l continued. It was admitted on the trial of that cause that said tender had been made by apppellees. After the filing, of said bill, appellees continued said tender by depositing with appellant as clerk of said chancery court as a payment into court the sum of one thousand six hundred ninety dollars and thirty-seven cents, which was ninety-three dollars and seventy-two cents more than the amount of their tender as pleaded in their said bill. The difference was probably the result of an error in calculation; the record in the case shows no other reason. The final decree in said cause found the amount to be due the defendants therein by appellees to be the exact amount tendered in their bill in said cause, to-wit, one thousand five hundred ninety-six dollars and sixty-five cents, and said decree directed .appellant as such ,clex*k to pay defendants in said cause out of the funds in his hands that amount. Instead of complying with the decree of the court, appellant, probably supposing that the amount deposited in his hands corresponded exactly with the amount tendered and found by said decree to-be due, paid over to the defendants in said cause the entire amount of said deposit, one thousand six hundred ninety dollars and thirty-seven cents. Appellees then brought this action against appellant, conceiving that on account of his having paid to the defendaxxts in the said cause the said sum of.ninety-three dollars and seventy-two cents, to which they were not entitled, and which belonged to appellees, the latter were entitled to recover the same back from, appellant. Appellant contends that recovery cannot be had by appellees under the principle that a plea -of tender and bringing the money into court by a party is an admission of his adversary’s cause of action to the extent of the amount alleged; and a party so tendering does so at his peril, for the money belongs absolutely to the party for whose account it is paid; and, to the extent of said tender, the latter’s cause of action is admitted and is thereby no longer [142] an issue between the parties; and that such tender cannot be withdrawn by the party making it, even though his adversary recovers less. 38 Cyc. 176, 177, and notes, and Memphis Machine Works v. Aberdeen, 77 Miss. 420, 27 So. 608, are relied on by appellant. The principle of law contended for by appellant is perfectly sound, but the facts do not exist in this case justifying its application. There was no tender in this case, either out of court or in court, of the larger amount of one thousand six hundred ninety dollars and thirty-seven cents, but the amount pleaded and tendered was one thousand five hundred ninety-six dollars and sixty-five cents. It is true the larger amount was deposited with the clerk through some misconception. But the admission of the appellees by their plea in that case was that they were due the smaller sum. Therefore we are of opinion the decree of the court should be affirmed. Affirmed.