Johnson v. Triggs, 4 Greene 97

Opinion by Greene, J. This suit was commenced by J. C. Johnson, before a justice of the peace, on an account against J. Triggs. Plaintiff recovered judgment for $1120. Defendant appealed to district court, where judgment was rendered against the plaintiff for costs amounting to over one hundred dollars.

It appears that a jury was waived, and that the court found the facts to be in substance as follows: That plaintiff let the defendant have 1200 shingles, worth at the time $4 20; that before suit was commenced defendant tendered to the plaintiff $4 25, in silver, to pay for the shingles, but he refused to take the money, and that at no time before suit did plaintiff give notice of his intention or readiness to accept the tender; that the defendant did not offer to pay the money before the justice, nor in the district court, and did not in any way claim or pretend to have the money ready for plaintiff.

Upon these; facts the court finds for the defendant, and it is ordered that'jthe plaintiff pay the costs herein, and the court holds that it is not necessary, in order to keep the tender good, that the same should have been brought before the justice, or in this court, unless there had been a demand by plaintiff •subsequent to the tender and refusal. To this decision, two exceptions are made: 1. It is urged that if defendant intended to rely upon his tender, he should have produced the money before the justice and in the district court.

A majority of the court entertain the opinion that the Code, § 966, makes no change ripon the prevailing rule in this particular. It only provides that the party may retain in his possession the money or property tendered, but if the other party after-wards gives notice of his willingness to accept, the tender will be of no effect, if not delivered to him within a reasonable time. But the Code in no way removes the necessity of a tender, or an offer to tender the money in court, in order to keep the tender good.

Here was an unconditional indebtedness; the defendant acknowledged that he owed the plaintiff $4 25 for shingles, but plaintiff claimed more than that sum; if then the defendant wished to rely upon his tender, he should have had the necessary amount ready, not only before the justice, but also in the district court. So far from doing this, it appears of record that the question of tender was not even raised before the justice. As the tender was not urged before the justice, it could hardly be deemed in order, or according to the spirit of the Code, to admit such new defense on appeal in the district court.

Code, § 2344. Besides, the amount claimed to have been tendered appears to have been inadequate to the amount found to be due the plaintiff’ by the judgment of the justice. The plaintiff claimed $15. The justice found $1120 to be his due, while the district court estimated the amount at $4 20. At common law a tender is not allowed when the claim is unliquidated and so uncertain, that the amount is to be determined by the discretion of a jury. A tender may be made in all cases when the demand is certain or capable of being made certain by mere computation. Green v. Shurtliff, 19 Vt., 592; Day v.

Lafferty, 4 Pike, 450; The People v. Steinbury, 1 Denio, 635. Of course, if the defendant had tendered as much as the plaintiff claimed to be his due, it was sufficient. But still, tbe party having made tbe tender, it should bave been urged specially in tbe action before tbe justice of tbe peace, if be intended to rely upon it. Griffin v. Tyson, 17 Verm., 35. Tbe necessity of having tbe money in court, in order to make a plea available, is quite ' uniformly conceded. Sheriden v. Smith, 2 Hill, 538; Earle v. Earle, 1 Harr.; Wing v. Hurlburt, 15 Verm., 607; Booth v. Comeggs, Minor, 201; De Wolf v.

Long, 2 Gilman, 679; Jasboe v. McAtee, 7 B. Mon., 279; Brown v. Furgison, 2 Denio, 196. Tbe reason why tbe money should be in tbe court is obvious. A tender of tbe amount due does not satisfy the demand. It only stops interest, and if kept good saves cost. After tbe tender is made, tbe money justly belongs to the creditor, and should be, therefore, at all times accessible to him. In Sands v. Lyon, 18 Conn., 18, it is decided that in order to make a legal tender of a debt, it is necessary, as a general ride, that the money be actually produced and placed within the power of the creditor to receive it.

There is nothing in tbe Code of Iowa which removes the reason for this rule. There is nothing expressed, and clearly nothing should be presumed against the prevailing doctrine. Especially as tenders are stricti juris, and nothing should be presumed in their favor. Shotwell v. Dennman, Coxe, 174. 2. Hpon tbe facts as found and stated by the court below, it is claimed that judgment should bave been rendered for the plaintiff! This point in the case is even more flagrant than the first. It is singular that the court coidd find an amount due tbe plaintiff’, and still render judgment against him.

If the view entertained by the court in relation to tbe tender was correct, it could only clear the defendant from costs. It could not operate as payment and satisfaction. The very fact that defendant made a tender to plaintiff showed an indebtedness of at least that amount. In Wood v. Perry, 1 Barb., 114, it is held that when a tender is made and relied upon, the plaintiff will be entitled to recover that amount without proof on his part. Slack v. Price, 1 Bibb, 272; Eddy v. O'Hara, 14 Wend., 221; Baily v. Bucher, 6 Watts., 74; Sheridine v. Gaul, 2 Dall., 190.

Aside from the authorities, the proposition would seem self-evident, that a tender admits the plaintiff’s cause of action to the amount of the sum or thing tendered. Judgment reversed.