Mann v. Roberts

KeewiN, J. This action is brought to recover $1,600 claimed to be due plaintiff on contract referred to in the foregoing statement of facts. Defendant in his answer admits that before action brought and on June 15, 1904, he was indebted to the plaintiff in the sum of $525 for the use of the machinery referred to in the complaint. The defendant, however, contends that his answer shows a tender of this amount admitted to be due before action was brought and on June 15, 1904, and therefore plaintiff was not entitled to the remedy provided for by sec. 2892, Stats. 1898; that in case of pife» of tender before suit, kept good, sec. 2892, Stats. 1898, has no application, but that the action is governed by secs. 4265„ 4267, Stats. 1898. If the appellant had pleaded a -tender before action brought, and that such tender had been kept good, as claimed, there would be much force in this contention. The main contention, therefore, and the one upon which this case must turn, is whether the answer shows a good tender before action brought. If so, then the plaintiff was not entitled to the remedy provided by sec. ’2892, Stats. 1898. But, on the contrary, if no tender was pleaded and the answer admits indebtedness of $525, he was entitled to such [146] remedy, and tbe court was right in ordering defendant to pay tbe sum of $525 admitted to be due by tbe answer. Tbe allegations of the answer respecting tender are, in effect, tbat on tbe 15th day of June, 1904, defendant and plaintiff met for the purpose of adjusting and settling said matter, and tbat defendant then and there offered plaintiff tbe sum of $525 in full settlement of tbe indebtedness for tbe use of said shovel and appliances, and plaintiff then and there refused to accept the same; tbat defendant ever since has been and now is ready and willing to pay said sum and bring tbe money into court for tbe use of tbe plaintiff and in discharge of tbe indebtedness incurred by said contract and tbe terms thereof. It is very clear tbat these allegations do not constitute a good tender. In order to constitute a valid tender it must be an unconditional offer of tbe amount tendered. An offer to pay a certain sum of money in satisfaction of tbe whole debt is not sufficient. Elderkin v. Fellows, 60 Wis. 339, 19 N. W. 101; Latham v. Hartford, 21 Kan. 249; 2 Greenl. Ev. § 605; Noyes v. Wyckoff, 114 N. Y. 204, 21 N. E. 158. A tender of money in order to be available as a defense must be without qualification or condition. It must not be coupled with any condition or qualification which, if accepted, would prejudice tbe right of tbe party to whom the amount is tendered in- tbe litigation of bis claim for a larger sum. So a tender “in full settlement and discharge of all demands which plaintiff held against him” is not a good tender. Wood v. Hitchcock, 20 Wend. 41. It is quite clear from the allegations' of the answer in the case before us that the offer to pay $525 was an offer in payment and satisfaction of tbe amount due :from defendant to plaintiff under the contract sued upon. .According to the allegations of the answer tbe offer was made in full settlement of the plaintiff’s claim. Tbe offer of payment was in tbe nature of an offer of compromise and settlement and not such an unconditional offer to pay $525 as would constitute a tender. Shiland v. Loeb, 69 N. Y. Supp. [147] 11; Richardson v. Boston C. L. 9 Met. 42; Roosevelt v. Bull’s Head Bank, 45 Barb. 579; Irvin v. Gregory, 13 Gray, 215; Thayer v. Brackett, 12 Mass. 465. There being no tender before suit, and defendant having admitted the indebtedness of $525, plaintiff was entitled to an order for the payment thereof. Sec. 2892, Stats. 1898. It is further claimed by appellant that the court erred in ordering the payment of $525 and interest from June 15, 1904; but it appears from the allegations of the answer that the $525 was due on June 15, 1904, and there having been no tender so as to deprive plaintiff of the remedy provided by sec. 2892, Stats. 1898, he was entitled to an order for the payment of the amount due, which, of course, includes interest from June 15, 1904, the time at which it is admitted by the answer said sum became due. Therefore there was no error in ordering payment of interest. The order of the court below was fully authorized under the pleadings, and, being in compliance with sec. 2892, Stats. 1898, no error was committed. Buffalo B. W. Co. v. Phillips, 64 Wis. 338, 25 N. W. 208; Sellers v. Union L. Co. 36 Wis. 398. By the Gourt. — The order of the court below is affirmed.