Thompson v. Kellogg

LEONARD, Judge, delivered the opinion of the court. This case turned upon the fact of payment, which the jury passed upon under instructions of the court, the propriety of which is the matter submitted to our judgment. Whether the defendant made himself liable to the party interested, by declining to receive the money when it was offered to him, is [285] another question which is not involved here, and is not at all touched by the judgment now given. Payment, in its largest sense, is the actual accomplishment of the thing that the party obliges himself to give, or to do, whatever that may be, although, in our acceptation, it is ordinarily confined to money engagements, and it is therefore the natural manner in which obligations are extinguished. When the obligation is to give something, the payment is 'accomplished when the property in the thing to be given is actually transferred to the creditor; and of course, in order to constitute the transaction a payment, there must be both a delivery by the debtor and an acceptance by the creditor, with the purpose on the part of the former to part from, and of the latter to accept of, the immediate ownership of the thing passed from the one to the other. In a payment, we ordinarily look only to the act of the party making it; but yet its legal import is an act in which the debtor tenders and the creditor accepts that which is offered. “ Ut ilaque solutio fieri posset, necessario requisitur ut utrinsque tarn precstaniis quam accipientis voluntas concurred,” is the definition given in the Roman law, and may be safely adopted as a correct definition of a common law payment. In our law a tender does not extinguish the debt, but merely discharges the debtor from interest and protects him from an action, if he have ever afterwards been ready to pay, and when sued, pleads the tender accordingly, accompanied with the money due. In other systems of jurisprudence, the debtor, upon an ineffectual offer of payment, may deposit the thing paid in the hands of a third person, under the authority of a court of justice, and thereby extinguish his own liability. This is called a consignation, and Pothier, in his work on obligations, (part 3, chap. 1, art. 8,) says : “ It is not properly a payment, for a payment essentially includes a transfer of property in the thing which is paid, whereas it is evident that a consignation does not transfer the thing consigned to the creditor, who can only acquire a property by voluntarily receiving [286] it. Dominium, non acquisitur nisi corpore et animo. Tlie effect of a consignation, if it be adjudged to be valid, is that the debtor is thereby absolutely discharged; and although, sub-tilitate juris, he continues to be the owner of the things consigned until they are taken away by the creditor, they are no longer at his risk, but at that of the creditor, who, from being a creditor of a certain amount generally, becomes the creditor of the particular articles that are so consigned, tan-qnam certorum corporum ; and he is no longer the creditor of the original debtor, who is entirely liberated, but of the con-signatory.” (Burge on Suretiship, book 2, ch. 8, sec. 3.) The general principles of law applicable to the question whether the transaction be a payment or merely a tender, seem to be plain enough, and we do not see that there was any failure on the part of the court to instruct the jury properly upon the subject. What took place, if the full sum were offered, about which no question is raised, undoubtedly constituted a valid tender on the part of the debtor. He had done all that was necessary upon his part, “ corpore et animo,” in order to make it a valid payment; and the only question was, whether that is also true in reference to the creditor. Admitting that the money was within the physical control of the creditor, the question yet remained whether it was there with intent on his part to keep it as owner, which was necessary in order to make it presently his property ; or, in the words of the court, whether he received it “ in immediate satisfaction of the draft,” or only with a view to count it over, reserving to himself, until after the examination and count were completed, the privilege of determining whether he would decline or accept the payment. The question was one of fact, and having been submitted to the jury under proper instructions, we shall not disturb the judgment, and it is accordingly affirmed ; Judge Ryland concurring. Judge Scott dissents.