Bailey v. Buchanan Cnty.

• Decision Date: 08 October 1889
• Parties: BAILEY v. BUCHANAN COUNTY.
• Court: New York Court of Appeals Court of Appeals

115 N.Y. 297

22 N.E. 155

BAILEY

v.BUCHANAN COUNTY.¹

Court of Appeals of New York.

Oct. 8, 1889.

Appeal from superior court of New York city, general term.

Action by Francis D. Bailey against the county of Buchanan, in the state of Missouri. Judgment was rendered for plaintiff for $83.33 by special term, and was reversed and new trial ordered by general term. Defendant appeals.

James W. Perry, for appellant.

Henry Parsons, for respondent.

EARL, J.

The defendant, on the 1st day of July, 1869, made and issued a large number of bonds, each for the payment to the St. Louis & St. Joseph Railroad Company, or bearer, of $1,000, on the 1st day of July, 1889, with interest, payable semi-annually, at the rate of 10 per cent. per annum, on presentation of the coupons thereto attached at the Bank of America in the city of New York, with the right, however, at the option of the defendant, to redeem the bonds at any time after 10 years from their date. Some time prior to the 1st day of July, 1883, the plaintiff's assignee became the owner of 10 of such bonds, with the unmatured coupons thereto attached; and on the 1st day of July, 1883, he detached the coupons falling due on and prior to that day, and presented them for payment, and they were not paid. Subsequently, on the 7th day of July, 1883, the defendant duly exercised its option to redeem the bonds, and in the same month deposited the money in the Bank of America for their payment, and notified him that the money was there for the payment of the bonds, and the interest thereon to August 1st, and that it was ready to pay the bonds and all the interest to that date upon the surrender of the bonds and the coupons. The holder was willing to take payment of the bonds and the interest thereon to August 1st, and to surrender the bonds and unmatured coupons; but he did not present for payment, and was unwilling to surrender, the past-due coupons. Subsequently the defendant paid the bonds and the coupons falling due on and prior to July 1st, and after January 1, 1884, the holder transferred the coupons falling due January 1st to the plaintiff, who then commenced this action to recover the amount due thereon. At the trial term the court held that the tender of payment made in July, 1883, was sufficient to stop the running of interest upon the bonds, and that the plaintiff could only recover the interest for the month of July. Upon appeal by the plaintiff to the general term, the court reversed the judgment, holding that the defendant had not the right at the time of such tender, as a condition of payment, to demand the surrender of the coupons then past due, and that therefore the tender was not good, and that the plaintiff was entitled to recover the full amount of interest falling due January 1st, as if no tender had been made. The plaintiff took the coupons after their maturity, and with notice of the facts affecting them in the hands of his assignor, and hence his position for the maintenance of this action is no better than would have been occupied by his assignor if he had brought this action.

The sole question for our determination, then, is whether the defendant could, as a condition of its tender and payment, in July, 1883, rightfully demand the surrender of the bond and all the coupons then held by the assignor of ...