C.C. Kelly Banking Co. v. McPherson
| Citation | 56 So. 266,100 Miss. 681 |
| Decision Date | 10 December 1910 |
| Docket Number | 14540 |
| Court | Mississippi Supreme Court |
| Parties | C. C. KELLY BANKING CO. v. O. S. MCPHERSON |
APPEAL from the chancery court of Attala county, HON. J. F. MCCOOL Chancellor.
Suit by O. S. McPherson against C. C. Kelly Banking Co. et al. From a judgment for plaintiff, defendant appeals.
A full statement of facts will be found in the opinion in McPherson v. Davis, 95 Miss. 215, 48 So. 625. The instant case is an appeal from a decree entered after the former case was remanded. Upon the remanding of the former case, it was shown that Lowenberg had actually paid one thousand dollars to Davis, trustee, and that Davis had been holding this money awaiting the result of the litigation. Complying with the mandate of the court under the former decree, Davis paid the whole amount back to Lowenberg. The chancellor thereafter appointed a commissioner to sell the land, and it was sold for about two thousand dollars, and purchased by McPherson, and the money paid into court. The principal contention here between the appellant and the appellee is over the amount claimed as interest from September 14, 1906, the date on which McPherson the second mortgagee and purchaser at the sale under the first mortgage alleges that he made a tender to the bank of the amount due it under its first mortgage, but not the total amount which he had bid at the sale. The court held that this tender by McPherson on that day stopped the running of interest. It is the contention of the appellant that it was not a legal tender, and that interest lid not stop, but continued to run.
Reversed and remanded.
Flowers Fletcher & Whitfield, for appellants, cited 28 Am. & Eng. Ency. Law (2d Ed.) 34, 35; Rowell v. Jewett, 73 Me. 365, 28 Am. & Eng. Ency. Law (2d Ed.), 31, 40, 21 Am. & Eng. Ency. Pl. and Pr. 569; Miller v. McGehee, 60 Miss. 903, 1 Jones on Mortgages, section 899; McCalley v. Otey, 99 Ala. 584, 12 So. 406, 42 Am. St. Rep. 87; McGuire v. Van Pelt, 55 Ala. 344; Carlin v. Jones, 55 Ala. 624; Thayer v. Meeker, 86 Ill. 474; Moynahan v. Moore, 9 Mich. 9, 77 Am. Dec. 468, and note on page 485, 7 Wait's Actions and Defenses, 596, section 17; Curtiss v. Greenbanks, 24 Vt. 536; Potts v. Plaisted, 30 Mich. 149; Harmon v. Magee, 57 Miss. 410; Tishomingo Savings Institution v. Buchanan, 60 Miss. 496, 20 Am. & Eng. Ency. Law (2d Ed.), p. 1062, 2 Beach on Contracts, sections 302-320; Werner v. Tuch, 127 N.Y. 217, 27 N.E. 845, 24 Am. St. Rep. 443.
Deavours & Shands, for appellee.
The single point presented for decision, in view of the former decision of this court on this record, is whether the appellee made a legal tender...
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