Berthold v. Reyburn

• Decision Date: 31 March 1866
• Parties: PIERRE A. BERTHOLD AND AMEDEE BERTHOLD, Appellants, v. JULIETTE V. REYBURN et al., Respondents.
• Court: Missouri Supreme Court

37 Mo. 586

PIERRE A. BERTHOLD AND AMEDEE BERTHOLD, Appellants,

v.JULIETTE V. REYBURN et al., Respondents.

Supreme Court of Missouri.

March Term, 1866.

Appeal from St. Louis Land Court.

In this case, the petition set forth that on the 10th March, 1860, Pierre Berthold executed to Juliette V. Reyburn his promissory negotiable note for $7,000, and also six interest notes, each for $350--the first payable in three years after date, and the interest notes at intervals of six months, and all bearing interest after maturity at ten per cent, per annum: that, to secure the payment of these notes, Amedee Berthold executed a deed of trust, conveying certain land therein described to the trustee of Mrs. Reyburn; that all of the interest notes were paid, and also all accruing interest down to 10th March, 1864; that on the 5th of July, 1864, plaintiff tendered to the defendant, Juliette V. Reyburn, the amount of principal and interest then due on the said note of $7,000, being $7,233.35, United States legal tender notes, which offer was refused, for the reason that defendant demanded and would receive gold only; that plaintiff has ever since remained and still is ready and willing to pay defendant said principal and interest so tendered, and now offers and asks leave to pay the same into court, in full discharge of said note and deed of trust. Plaintiffs further alleged that, since the tender aforesaid, defendant has never demanded the same; they therefore prayed judgment, &c.

The answer of Juliette V. Reyburn admitted the making of the deed and notes, and the payment of interest to the 10th of March, 1864, but denied the alleged tender on the 5th July, 1864, and denied that the plaintiffs have been since the 5th July, 1864, ready and willing to pay said money; stated that the principal sum of $7,000, and interest thereon, had been repeatedly demanded, to-wit, in February, 1865, and that payment was refused by said plaintiffs; and she asked the court to decree the payment to her of $7,000, and interest from 10th March, 1864 which being paid, she was ready and willing to release the mortgaged property.

The case was tried by the court, neither party requiring a jury, on the 19th December, 1865. By the bill of exceptions it appears that the plaintiffs called as a witness R. A. Bakewell, who testified as follows:

“In the latter part of June, 1864, I was employed by Mr. Tesson, as agent of Mr. P. A. Berthold, to see Mrs. Juliette V. Reyburn and pay her the amount due on note dated 10th March, 1860, at three years, for $7.000, with ten per cent. interest from 10th March, 1864. Accordingly I called to see Mrs. Reyburn at her house. She informed me that she had seen her attorney, Mr. Todd, and that as he was of the opinion that she would have to receive U. S. notes in payment, and could not require gold, she had concluded to take it, and was willing to receive the amount in U. S. notes. Afterwards, on the 5th July, 1864, I went down to the banking-house of Tesson & Danjen to get the money, for the purpose of paying Mrs. Reyburn. Mr. Tesson took from the counter a money package in a letter envelope, marked on the back with figures. I took that package and was proceeding towards Mrs. Reyburn's house, and when on Olive street I met Mrs. Reyburn, and said to her, ‘I am glad to meet you, madam. I have the money to pay Mr. Berthold's note, and I was going up to pay it.’ She said, ‘You need not put yourself to any trouble, Mr. Bakewell; for, since I saw you last, I have consulted with Mr. Gantt, and have been advised not to take the amount otherwise than in gold.’ I said, ‘Then it will still be necessary for me to see you at your house, for I must count out the money to you and offer it.” She said, ‘It is not necessary to do so. I wont take it except in gold.’ I said, “You must excuse my being particular, Mrs. Reyburn, because there will probably be a suit here, and a technical question will arise.” I then produced the package, and said, ‘Mrs. Reyburn, here is the amount due on that note in legal tender notes. You say you don't want me to count it.’ She said she did not. I said, ‘I now tender you the amount due on Mr. Berthold's note, in legal tender notes,’ and I offered her the package. She said, ‘I wont take it.’ I said, ‘Do you object to it because it is not the correct amount?’ She said, “No, I wont take it except in gold.' I then said, Mrs. Reyburn, you object to receive this money only on the ground that it is not in gold, and for no other reason?' She said, ‘Yes.’ And then, after passing the usual compliments, we separated.”

And on cross-examination, the witness said: “I never counted the money in the package, nor saw it counted, and cannot say of my own knowledge how many notes it contained, nor the amount of them. Between the 10th and 21st of February, 1865, Mrs. Reyburn's counsel called several times at the office of Mr. Farish, and left word for him that he wished to see him respecting the payment of the money due Mrs. Rey burn from Berthold. On the 5th of July, 1864, when I had the interview with Mrs. Reyburn, spoken of, gold was very high, perhaps as much as $150 premium, or $250 for $100 of gold. I think it was not so high then as it afterwards became. In February, 1865, it was lower, being about 70 or 80 premium, or $170 or $180 paper for $100 in gold. I do not know that the money market was stringent in February, 1865.”

Plaintiff next called as a witness Edward T. Farish, who testified as follows: “As the attorney for Mr. Berthold, after the tender spoken of by Mr. Bakewell, I commenced suit, similar to the present one, in the St. Louis Circuit Court; the defendant demurred for want of jurisdiction in the court. About the 8th of February, 1865, the demurrer was sustained. On the tenth of February, 1865, I met Mr. Gantt, who was defendant's counsel, in court, and the following conversation ensued between us: He asked me what I should do. I told him I should commence suit in the Land court. He said, ‘will you make a new tender?’ I told him no, that one tender was sufficient. He then turned the conversation by inquiring if I had seen Mr. Shepley. About four o'clock in the afternoon of that day Mr. Gantt came into my office (I was then actually engaged in re-writing the petition to commence suit in this court,) and said, “‘You understood me this morning that we would take the money?’ ‘Yes', I replied, ‘I understood you that you would take the amount tendered, with interest.’ He then said, ‘We will take the amount tendered.’ I said, ‘without interest?’ He assented and said, ‘Bear in mind the amount will now bear interest, or interest will now run on the amount tendered.’ I told him that I was very glad to understand him; that I had not so understood him in the morning.

I immediately wrote to my client, Mr. Berthold, informing him that Mr. Gantt had agreed to take the sum of seven thousand two hundred and thirty-three dollars and thirty-five cents, the amount tendered on 5th July, 1864, and that interest would now run on the amount, at ten per cent. That evening, Mr. Berthold called to see me, and inquired if the amount should be paid at once. I told him no; but that as the amount was now drawing interest, the sooner he paid it the better.

On the 21st of February, 1865, I met Mr. Gantt, and upon his inquiring about the money, I told him I would see to it. He then intimated that it not having been paid, they would claim interest from the start. I told him that the understanding was, that the amount tendered was to draw interest from February 10th, 1865; that neither I nor my client had understood the matter in the way he did.

I immediately saw Mr. Berthold, went to Mr. Gantt's office, and what occurred is evidenced by a paper of which Mr. Gantt has the original; which was thereupon read in evidence. It is as follows;

‘Mr. Farish, this 21st day of February, 1865, at 2 P. M., handed me the check of Berthold and Thompson, of that date, numbered 317, on Tesson and Danjen, payable to the order of Bakewell & Farish, for seventy-two hundred and fifty-four 71-100 dollars ($7,254.71), and declared that the same was tendered in payment of a note for seven thousand dollars executed by Pierre A. Berthold to Juliette V. Reyburn, dated 10th March, 1860, at three years from date. On the part of Mrs. Reyburn I offered to take the check for the money tendered, at its face, on account of said note and interest from its maturity, but not in full payment thereof, and Mr. Farish declined to endorse and deliver the check upon such terms.

THOS. T. GANTT, for Mrs. J. V. Reyburn.

BAKEWELL & FARISH, for P. A. Berthold.”DD'

On cross-examination witness said he had heard of Mrs Reyburn's counsel calling to see him during his absence from his office, between 10th and 21st February, 1865, respecting this business.

This was all the evidence in the cause. The plaintiffs insisted, 1st. That the tender made 5th July, 1864, was a good and valid tender. 2d. That tender puts a stop to accruing interest, and gives costs to the party making the tender. 3d. That to do away with the effect of the tender a demand must be made of the precise amount tendered; there must be a refusal to pay said demand; and that the pleadings and the proof showed no such demand and refusal.

The court dismissed the bill.

The defendant asked the court to reform the judgment, by decreeing foreclosure.

Farish, for appellants.

I. That the tender made July 5th, 1865, was a good and valid tender

II. That tender before action brought puts a stop to accruing interest, and gives costs to the party making the tender.

III. That to do away with the effect of the tender, a demand must be made of the precise amount tendered, and there must be a refusal to pay said demand.

1. The words and action of respondent were a waiver of the actual opening of the package, and of all objections except to the specific character of the funds. The production and tender to respondent of what is admitted to have been a...