Baker vs. 4th New-Hampshire Turnpike, 8 N.H. 509

Up ham, J. In this case the only matter for consideration is the effect of the contract made as to the deposit of money tendered by the defendants. The plaintiff’s claim is for $100, which was the amount of the damage appraised to him for the laying out of a highway over his land ; and this sum was tendered him by the defendants on the 9th of September, 1833.

At that time an agreement was made by the parties as to the disposition of the sum tendered ; and the question arises, whether the arrangement then entered into operates as a bar to this action, or whether it was a mere agreement as to a mode of sustaining a tender, until such time as the plaintiff should elect either to receive the money, or to prosecute his claim at law. We are of opinion it was a mode of sustaining a tender merely, until such time as the plaintiff should elect to institute his suit, or not. This arrangement would be for the convenience of both parties.

The defendants would have a safe place of deposit for their money ; and the plaintiff, if he elected to receive the amount tendered, would find it at a place more readily accessible than it would have been, had he, under the ordinary operation of the law, been competed to demand it of the plaintiff, in order to obtain the money, or do away the effect of the tender. By the contract, if the plaintiff elected to receive the money he must go to the bank for it; if he declined receiving it there, from any cause, he was then at liberty to commence a suit at such time as he saw fit.

The contract affixed no limitation to the plaintiffs right of action. The plaintiff called for the money, but owing to some misunderstanding betwixt him and the cashier, as to the terms of the deposit, he refused to receive it with the conditions annexed to its receipt. He could have sued without calling for the money ; and it does not preclude a suit because he called, and refused to receive it on the terms prescribed. Its only effect is to show that the money was then in readiness for him.

On the suit being instituted, the arrangement as to the deposit was at an end, and the defendants were bound to sustain their tender on the principles of the common law. They, therefore, should have re-claimed their money, and preferred their tender seasonably on the entry of the action in court. This they have not done, and have lost the privilege of availing themselves of the tender made by them before suit. Tender can now only be made as during the pendency of an action, under the ordinary rule. Under this view of the effect of the contract made betwixt the parties, the instruction of the court was wrong.

The verdict for the defendants must, therefore, be set aside, and a New trial granted.