Bruhl v. Hood

Decision Date20 September 1911
Citation156 N.C. 52,72 S.E. 83
CourtNorth Carolina Supreme Court
PartiesDE BRUHL v. HOOD.

1. Tender (§§ 18, 24*)—Sufficiency—Requisites.

To constitute a valid tender, the party making it must allege and show that since the refusal of acceptance he has always been ready to pay the same, and should bring the amount of the tender into court.

[Ed. Note.—For other cases, see Tender, Cent. Dig. §§ 55-58, 67-75; Dec. Dig. 18, 24.*]

2. Tender (§ 24*)—Pleading—Sufficiency.

A plea of tender, not accompanied by a deposit of the money in court, is bad.

[Ed. Note.—For other cases, see Tender, Cent. Dig. §§ 79-81; Dec. Dig. § 24.*]

3. Tender (§ 19*)—Effect as Admission of Liability.

In an action to enjoin a mortgagee from selling the mortgaged premises, where the mortgagor alleged that only a certain amount was due and that he had made tender, but did not deposit the money in court and the mortgagee answered, insisting that a much larger sum was due, the mortgagee could not claim the amount of the tender, where upon trial the jury found a less amount to be due, as the tender of a larger amount did not entitle him to it, or deprive the court of the right to ascertain the true amount.

[Ed. Note.—For other cases, see Tender, Cent. Dig. §§ 59-64; Dec. Dig. §19.*]

Appeal from Superior Court, Craven County; Ferguson, Judge.

Action by C. J. De Bruhl against J. T. Hood. From a judgment for plaintiff, defendant appeals. Affirmed.

Guion & Guion, for appellant

Moore &Dunn, for appellee.

WALKER, J. This action was brought to enjoin the defendant from selling certain property under powers of sale contained in two mortgages, originally executed by plaintiff to Mrs. Sophia B. Duffy and the Citizens' Bank of Newbern, to secure notes of the plaintiff, and by them sold and transferred to the defendant. It is alleged in the complaint that several cash payments were made upon said indebtedness by the plaintiff, which, with the proceeds of certain timber cut from the land and received by the defendant, which, by reason of the contract between the parties, should have been applied to the debt, have reduced the amount thereof to $273.68, which sum was tendered by the plaintiff to the defendant, who refused to accept the same.

No money was deposited in court in order to keep the tender good. It is the universal rule that, in order to constitute a valid and effectual tender, the party who makes it must allege and show that since the refusal to accept the money he has always been ready to pay the same, and must bring the amount of the tender into court; and it has been said that he should take a rule on the plaintiff, or party to whom the debt is due, to accept the same or proceed at his peril. Cope v. Bryson, 60 N. C. 112. In Bissell v. Heyward, 06 U. S. 580, 24 L. Ed. 678, it was said, with reference to a sufficient tender: "To have the effect of stopping interest or costs, a tender must be kept good; and it ceases to have the effect when the money is used by the debtor for other purposes."

A plea of tender, not accompanied by profert in curiam, is bad. Soper v. Jones,

56 Md. 503. The subject is fully discussed in Parker v. Beasley, 116 N. C. 1, 21 S. E. 055, 33 L. R. A. 231, with ample reference to the authorities. Justice Allen, in a very recent case decided by this court (Lee v. Man-ley, 154 N. C. 244, 70 S. E. 385), adopts the statement of Wilde, C. J., in Dixon v. Clark,

57 E. C. L. R. 376, as follows: "The principle of the plea of tender, in our apprehension, is that the defendant has been always ready (toujours prist) to perform entirely the contract on which the action is founded, and that he did perform it, as far as he was able, by tendering the requisite money; the plaintiff himself precluding a complete performance by refusing to receive it. And as, in ordinary cases, the debt is not discharged by such tender and refusal, the plea must not only go on to allege that the defendant is still ready (uncore prist), but must be accompanied by a profert in curiam of the money tendered." The case of Dixon v. Clark was cited with approval, also, in Bank v. Davidson, 70 N. C. 122.

The defendant in his answer insisted that the amount due upon the indebtedness secured by the mortgages was not $273.68, as alleged by the plaintiff, but a much larger sum, to wit, $1,180.96, and demanded the payment of that amount The jury found that the true sum was neither of the said amounts, but $203. It was...

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8 cases
  • Ingold v. Phoenix Assur. Co.
    • United States
    • North Carolina Supreme Court
    • March 23, 1949
    ...tender not accompanied by profert in curia, is bad. Soper v. Jones, 56 Md. 503. ' Parker v. Beasley, supra [116 N.C. 1, 21 S.E. 957]; DeBruhl v. Hood, supra. judgment entered provides that the amount recovered shall bear interest from July 19, 1947. In this there was error. The policy provi......
  • Dr. Shoop Family Medicine Co. v. Davenport
    • United States
    • North Carolina Supreme Court
    • October 15, 1913
    ... ... Jones, 56 Md. 503, it was held that ... "a plea of tender, not accompanied by profert in curiam, ... is bad." The same was said in De Bruhl v. Hood, ... 156 N.C. 52, 72 S.E. 83. This plea of tender applies ... peculiarly to actions of debt and assumpsit; the present ... action being ... ...
  • Dr. Shoop Family Med. Co v. Davenport
    • United States
    • North Carolina Supreme Court
    • October 15, 1913
    ...Jones, 56 Md. 503, it was held that "a plea of tender, not accompanied by profert in curiam, is bad." The same was said in De Bruhl v. Hood, 156 N. C. 52, 72 S. E. 83. This plea of tender applies peculiarly to actions of debt and assumpsit; the present action being assignable to the latter ......
  • De Bruhl v. Hood
    • United States
    • North Carolina Supreme Court
    • September 20, 1911
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