Hanson v. Todd

• Decision Date: 05 January 1892
• Citation: 95 Ala. 328,10 So. 354
• Parties: HANSON v. TODD.
• Court: Alabama Supreme Court

10 So. 354

95 Ala. 328

HANSON v. TODD.

Supreme Court of Alabama

January 5, 1892

Appeal from city court of Anniston; B. F. CASSADY, Judge.

Action by George R. Todd against Fred Hanson for money. From the overruling of his motion to dismiss the suit at plaintiff's costs, defendant appeals. Reversed.

Kelly & Smith and McLeod & Dunstall, for appellant.

Blackwell & Keith, for appellee.

CLOPTON J.

The suit is for money due plaintiff for materials furnished and labor done in repairing the dwelling-house of defendant and an outhouse, and erecting a fence around his lot. The only disputed question of fact is the amount due. In answer to the suit, which was commenced August 18, 1890, defendant filed a plea of tender of the amount claimed by him to be due accompanied by the delivery of the money into court. Plaintiff, without demurring to the plea, or taking issue thereon, received, February 2, 1891, the money from the clerk, under the order of the court, and struck from the complaint the amount so received. Thereupon defendant moved to dismiss the suit at the cost of plaintiff, which said motion was overruled. What is the legal consequence, when the plaintiff elects to take, and receives, the money brought into court upon a plea of tender before suit commenced? is the controlling question presented by the record, and the only one necessary to be considered. As a general rule, a debtor has no right to insist that his creditor shall, by the reception of the amount tendered, be precluded from claiming that a greater sum is due, and suing to recover the same. A tender on such conditions that its acceptance would constitute or clearly imply an admission by the creditor that it was in full of his claim is invalid, and may be refused. The only effect of a tender refused, if pleaded, and the truth of the plea established, is to stop the interest, and exempt the defendant from the costs of a subsequent suit. While a mere tender, though of the whole amount due, when unaccepted, does not operate to extinguish or satisfy the claim, yet, when made in full of the amount due, and accepted without protest as to its sufficiency, the debt becomes extinguished. The creditor may reject a tender on condition that he receive it in full of his claim, but if he accepts it he is bound by the condition, and will not be allowed to keep the money and repudiate the condition. Miller v Holden, 18 Vt. 337. A tender, if accepted, is accepted as made. The statute (section 2685, Code) requiring a plea of the tender of money to be accompanied by a delivery of the money to the clerk of the court is declaratory of the general rule. A plea of tender, if in proper form, contains substantially the averment that the sum tendered and brought into court is the entire amount due plaintiff. The plea is in bar of, and, if proved, defeats, any recovery. Bringing the money into court on...