Elderkin v. Fellows
| Decision Date | 08 April 1884 |
| Citation | 60 Wis. 339,19 N.W. 101 |
| Parties | ELDERKIN v. FELLOWS. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Walworth county.Edward Elderkin and Pinney & Sanborn, for appellant, Edward Elderkin.
Smith & Wheeler, for respondent, R. R. Fellows.
The plaintiff brought suit against the defendant, before a justice of the peace, for attorney's fees and professional services of the value of $105. The defendant answered by a general denial, and by setting up the statute of limitations as to part of the demand, and alleged a tender to the plaintiff before suit brought of $15, and that he had kept such tender good by being ready and willing to pay the same, and he brings such money into court, ready to be paid to the plaintiff if he will receive the same. The justice found, after a trial upon the merits, that the value of the plaintiff's fees and services did not exceed the sum of $15, and that such sum was tendered by the defendant to the plaintiff before the suit was brought, and that said money had been paid into court, subject to the plaintiff's order, and rendered judgment for costs against the plaintiff. From this judgment the plaintiff appealed to the circuit court. The circuit court having heard said cause upon the return of the justice, rendered judgment against the plaintiff for the costs before the justice remaining unpaid, with interest thereon, together with the costs in that court. The justice did not write down all the material testimony, as required by the statute, but much of it he preserved in his memory, and returned it from his recollection, and the circuit court heard the case upon it. This, at least, was an irregularity, but it may have been waived by the expressed assent of the defendant, and tacit assent of the plaintiff, upon the justice announcing his inability to write down the testimony at the time. But aside from this irregularity, and that of not affirming the judgment, but rendering an original judgment in the cause, in violation of section 3769, Rev. St., the judgment was so rendered, both by the justice and the circuit court, by reason of the pretended tender of the sum of $15 before suit was brought. This tender is not sought to be sustained as one made after suit was brought, and of course could not be, because no costs were tendered, as required by section 4266, Rev. St., together with the sum due. The tender, if any was made, must have been such as can be sustained at common law. According to the recollection of the justice the defendant testified as follows: “That on or about the third day of August, 1882, at the town of Lyons, in the county of Walworth, the said defendant, having $15 in his pocket-book, took out his pocket-book and told the plaintiff that he had $15 in his pocket-book, and that he would pay said $15 to said plaintiff for his services; but that plaintiff refused to receive the $15, saying he would not take less than $75, and immediately walked away.” This was all the evidence as to the pretended tender. It is true that the defendant...
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...pending litigation, as provided in C. S., sec. 7192. A conditional tender is never good, either before or after suit. ( Elderkin v. Fellows, 60 Wis. 339, 19 N.W. 101; McCoy v. Buckley, 11 Cal.App. 241, 104 P. McDaniel v. Upton, 45 Ill.App. 151; Barnes v. Greene, 30 Iowa 114; Emerson v. Whit......
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...the money into Court"). And an offer to pay less than what was demanded was not a valid tender. See, e.g., Elderkin v. Fellows, 60 Wis. 339, 340–341, 19 N.W. 101, 102 (1884).Even when a potential defendant properly effectuated a tender, the case would not necessarily end. At common law, a p......
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..."brin[g] the money into Court"). And an offer to pay less than what was demanded was not a valid tender. See, e.g., Elderkin v. Fellows, 60 Wis. 339, 340–341, 19 N.W. 101, 102 (1884).Even when a potential defendant properly effectuated a tender, the case would not necessarily end. At common......
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