Equitable Life Assur. Soc. of U.S. v. Roberts

• Decision Date: 21 May 1936
• Docket Number: 6 Div. 932
• Citation: 168 So. 569,232 Ala. 539
• Parties: EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES v. ROBERTS.
• Court: Alabama Supreme Court

168 So. 569

232 Ala. 539

EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES v. ROBERTS.

6 Div. 932

Supreme Court of Alabama

May 21, 1936

Rehearing Denied June 11, 1936

Appeal from Circuit Court, Jefferson County; Leigh M. Clark, Judge.

Action by Mary A. Roberts against the Equitable Life Assurance Society of the United States. From a judgment for plaintiff defendant appeals.

Affirmed.

Howze &amp Brown, of Birmingham, for appellant.

Harris Burns, of Birmingham, for appellee.

THOMAS Justice.

This suit was for interest that had accrued upon the amount due on a policy of life insurance.

The amount due was not paid into court, and such tender as was made was not absolute and was coupled with a condition, as shown by the evidence of defendant's cashier, who testified that the amount due "under the policy as extended term insurance" would be delivered to plaintiff "if the policy was surrendered." This, coupled with the tender which contained a material condition, destroyed its efficacy as affecting liability for interest. Dozier v. Vizard Inv. Co., 203 Ala. 421, 83 So. 572; Commercial Fire Ins. Co. v. Allen et al., 80 Ala 571, 1 So. 202; Derby v. Bell, 217 Ala. 529, 117 So 8.

A positive declaration of a creditor that he will not accept tender relieves the debtor from making tender, so long as that attitude is maintained. This status is changed, however, where the creditor states an unwillingness to accept tender made because the condition of such acceptance is to be in full of all claims and surrender of the legal right to sue on any phase of the matter in controversy. Such a declaration does not give the debtor excuse for not tendering the amount due. Root v. Johnson, 99 Ala. 90, 92, 10 So. 293; Odum v. Rutledge & Julian Railroad Co., 94 Ala. 488, 496, 10 So. 222; 62 C.J. 676, 677.

In Wilhite v. Ryan, 66 Ala. 106, 109, the rule is thus stated "It is a correct general rule of law, that every tender of money, by a debtor to a creditor, must be absolute, and not coupled with conditions. It must not be offered in full of all demands, or on condition that the creditor return the necessary change, or execute a release, or on other similar terms leading to the embarrassment of the creditor's legal rights.--2 Greenl.Ev. § 605; Bakeman v. Pooler, 15 Wend. [ N.Y.] 637. If, however, the condition interpolated is one not prejudicial to the creditor, and on which the debtor has a right, under the contract, to insist, it does not vitiate the tender.--Wheelock v....