Cothran v. Scanlan

• Decision Date: 30 June 1866
• Citation: 34 Ga. 555
• Parties: Wade S. Cothran and George S. Black, plaintiffs in error. vs. John Scanlan, defendant in error.
• Court: Georgia Supreme Court

34 Ga. 555

Wade S. Cothran and George S. Black, plaintiffs in error. vs. John Scanlan, defendant in error.

Supreme Court of the State of Georgia

JUNE TERM, 1866.

In Equity. In Floyd Superior Court. Demurrer, decided by Judge Featherston. January Term, 1866.

The defendant in error tiled his bill against the plaintiffs in error, praying, among other things, that they be decreed to make titles to him for certain real estate which he had purchased of them, and paid for in part, giving his promissory note for the balance, payable on the 11th of September, 1864, in the currency of the country, with interest from date.

The bill alleged, that on the 17th of November, 1865, the complainant called on Cothran, one of the defendants in the bill, and offered to pay him what the amount of principal and interest on the note to that time, in Confederate money, (which was the currency contemplated) would have been worth in specie at the maturity of the note, upon the condition that he and his co-defendant would then and there make titles to the complainant; and that Cothran refused to accept said tender or make the titles.

The bill was demurred to generally, for want of equity. The Court overruled the demurrer; and this is assigned as error.

Underwood & Smith, for plaintiff's in error.

Weight & Beoyles, for defendant.

Walker, J.

Several questions were made in this case, but the decision of one will dispose of the others. Is a tender alleged? We think not.

We recognise the doctrine that the same precision is not required in equity pleadings which is exacted at law; but, even in equity, the averments must be sufficiently certain that issue may be taken thereon. " The general statement that a tender was made, is not enough. It is as defective as a general averment of fraud. That a tender was made is a conclusion of the pleader simply. He must state the facts which constitute a legal tender. The same precision, I know, is not required in equity pleadings that is exacted at law; yet, in the language of Lord Thurlow, he must state something substantial. The facts must be so stated as to be issuable. Defendant must be notified of the facts out of which the plaintiff\'s equity springs, and which he is to controvert. The rule at law is that a defendant pleading a tender, must show an actual production of the money, and an offer to pay it, or that the production of it was dispensed with by his adversary. 10 East, 101; 4 Esp. N. P. C.68; 1 Bingham\'s N. C. 253; 6 Wen. 22; 3 Star. Ev. 1559; 2 Wils. 74; Wheat. Selw. 153; Substantially, a party in equity claiming relief on the ground of tender, must so plead. It is not enough, at law, to plead that the party is still ready and willing to pay; he must state that he was always ready to pay, in addition to that. And if the declaration and plea show that the defendant was not always ready and willing to pay, the plea will...