Henderson v. Cass County

• Decision Date: 23 November 1891
• Citation: 107 Mo. 50,18 S.W. 992
• Parties: HENDERSON v. CASS COUNTY.
• Court: Missouri Supreme Court

18 S.W. 992

107 Mo. 50

HENDERSON v. CASS COUNTY.

Supreme Court of Missouri, Division No. 1.

November 23, 1891.

TENDER — WHAT CONSTITUTES — CONDITIONAL OFFER.

A county issued bonds, payable twenty years after date, which contained a stipulation for their redemption at any time after five years by paying the principal and accrued interest. At the expiration of five years it was determined to redeem them by paying cash or exchanging them for new bonds. The owner of a number of them presented them to the county's agent, and demanded an exchange for new bonds, dollar for dollar. The agent offered to pay cash or to exchange the old bonds for new ones at their market value, which was above par. Thereupon the holder served a written protest, and offered to accept the money, but the agent declined to pay it until the protest was withdrawn. Held, that there was no tender, as the offer was not unconditional, and the county was liable for interest subsequently accrued.

Appeal from circuit court, Bates county; D. A. DE ARMOND, Judge.

Action by John B. Henderson against Cass county to recover interest on certain of defendant's bonds. From a judgment for defendant, plaintiff appeals. Reversed.

J. B. Henderson, in pro. per., (T. K. Skinker, of counsel,) for appellant. R. T. Railey, W. L. Jarrott, and J. T. Burney, for respondent.

BLACK, J.

Plaintiff was the owner of bonds to the amount of $37,700, being a part of a series of 6 per cent. compromise and funding bonds issued by the defendant county on the 1st February, 1883. The bonds were payable at the National Bank of Commerce in New York 20 years after date. They contained a stipulation to the effect that the county might, at its option, pay them and the accrued interest at any time after five years; that is to say, at any time after February 1, 1888. This is a suit on 71 coupons detached from the bonds, representing the interest falling due on the 1st February, 1890. The defendant's answer is to the effect that it gave due notice that the bonds and accrued interest would be paid on the 1st day of April, 1889; that no interest would be paid after that date; and that on that date defendant tendered to the plaintiff the full amount of the principal, and also the interest then due upon the bonds, which the plaintiff declined to accept. The defendant brought into court, with its answer, the interest accrued up to the 1st April, 1889. The trial court gave the instructions asked by the defendant, but refused those asked by the plaintiff, and thereupon the plaintiff took a nonsuit with leave.

No question whatever is made over the validity of the bonds. The evidence shows that in 1889 the defendant county concluded to refund its outstanding bonded indebtedness, then payable, at its option, under the act of March 30, 1887, (Acts 1887, p. 26,) by issuing a new series of refunding bonds, bearing interest at the rate of 5 per cent. per annum. With this end in view, the county court made a contract with Coffin & Stanton, brokers and bankers in New York, dated the 26th February, 1889, whereby the county sold to them 250 of the proposed new bonds of the denomination of $1,000 each, to bear interest at the rate of 5 per cent. per annum, for the consideration of $252,600, being a premium of a little over 1 per cent. By this contract the county agreed to deliver the bonds to Coffin & Stanton on or before the 1st April, 1889, and the latter agreed to place the purchase price to the credit of the county on their books, and to take up and redeem the old bonds by paying the face value thereof and the accrued interest, and to pay all the expenses incident to funding the old bonds. This contract provides that holders of the old bonds shall have the right to exchange them for new bonds at their market value, while the new bonds are in the possession of the county court. On the 9th March, 1889, the county court made and published an order to the effect that the old bonds and accrued interest would be paid at the National Bank of Commerce, or at the banking-house of Coffin & Stanton, in New York, on the 1st April, 1889, and that no interest would be paid after that date. On the same day the county court made and published another order, declaring the purpose of the county to redeem the old bonds under the option given to it, and that the principal and interest would be paid at either of said banks on and after 1st April, 1889. The order also states that old bonds may be exchanged at par for new bonds at 105 by notifying the county court or Coffin & Stanton, the privilege of exchanging to cease after April 1, 1889. On the same day another order was made directing the bonds to be prepared and signed. The bonds were signed not earlier than 23d March, 1889. On the 22d March, 1889, the plaintiff notified the county court in writing that he desired to exchange his old for new bonds, "as provided by law." On the 1st April, 1889, the plaintiff, through the agency of a Mr. Betts, presented his old bonds to Coffin & Stanton in New York, and demanded an exchange for new 5 per cent. bonds, dollar for dollar. Mr. Stanton declined to make the exchange on those terms, but offered to plaintiff's agent the new bonds at 103, which was refused. That was then about the market value of the new bonds. Stanton then offered to pay cash for the old bonds; and the plaintiff, through his agent, served a written protest, and then offered to accept the money, but Stanton refused to pay it over until the protest was withdrawn, and this the plaintiff's agent declined to do, and so the matter ended.

From this history of this case it...