Josiah Fisk v. G. W. Holden, 17 Tex. 408

Wheeler, J. The material question is whether the defendant proved upon the trial a tender according to the terms of his contract. We arc of opinion that he did not. For the proofs in the ease we must look to the statement of facts, and not to any depositions in the record not referred to, or in any way made a part of the statement of facts. We there find evidence of the tender of either one of two horses, if received in full satisfaction of the debt. None other is proved to have been tendered, and neither of these to have been of the required value.

One witness estimates them to be worth each one hundred dollars in trade ; but that was not what the contract required. It called for a horse worth a hundred dollars ; which, unless there had been some qualification expressed, must be taken to mean so much money. Another witness thought one of the horses worth eighty dollars, and the other “ supposing the horse to be healthy,” he thought worth a hundred dollars. But no witness proved the condition on which he supposed the horse to be worth that sum.

This was all the evidence touching the value of the horses; and it manifestly was not sufficient to warrant the jury in finding the fact proved, that the defendant tendered a horse worth a hundred dollars. Nor was there any proof of a tender by the defendant, of any amount to make np tho deficiency ; which the terms of the contract required. On the contrary he declined the offer, made in behalf of the plaintiff, to receive one of the horses at its valuation. There was, therefore, no sufficient tender of performance of either of the conditions of the contract.

If there had been, it would not have operated an absolute discharge of the defendant from liability on the contract. Such is not the effect of a tender and refusal. In the case of a tender of money, it only discharges the subsequent interest and costs. And in case of specific articles, or goods, it only-exonerates the party from responsibility for their safe-keeping. As long as he continues in the possession of the goods, he will be bound to deliver them on demand. And if he should dispose of them, he will be responsible for the proceeds.

The party making the tender has an election to consider the property in the goods changed, and to become the bailee for the creditor, or to affirm the property to continue in himself, and become answerable for its value. If he elect to consider the property changed, it will remain in his - possession at the charge and risk of the creditor, and subject to his direction. The debtor cannot, in the character of bailee, dispose of it for his own benefit; for by doing so, he elects to treat it as his own, and will be answerable for its value.

It is unnecessary to pursuedhe subject, with a view to the application of these principles to this case ; for it is evident, there was no sufficient proof of a tender of performance of the contract, according to its terms and import. And for the same reason it is unnecessary to revise the charge of the Court; _ since if erroneous, it can have operated no injury to the defendant ; for under no instructions which might properly have been given, would the jury have been warranted in finding a verdict in his favor.

The jury having found for the plaintiff the principal sum specified in the note, interest followed as an incident, and was rightly included in the judgment. The judgment is affirmed. Judgment affirmed.