Hill v. Carter
| Decision Date | 16 June 1894 |
| Citation | 101 Mich. 158,59 N.W. 413 |
| Court | Michigan Supreme Court |
| Parties | HILL v. CARTER. |
Error to circuit court, Allegan county; Philip Padgham, Judge.
Action by Freeman B. Hill against Frank Carter. Judgment for defendant. Plaintiff brings error. Affirmed.
Williams, Williams & Butler, for appellant.
C. R Wilkes, for appellee.
Complaint against vendee in a land contract to recover possession of the premises upon claim of forfeiture by reason of nonpayment of interest. Defense: (1) An alleged agreement that certain work was done for complainant, which was to be applied to the payment of the interest; and (2) a tender made before the declaration of forfeiture, and two tenders made afterwards and before the complaint to recover possession.
The following questions were submitted to the jury, the first four of which were answered in the affirmative, and the last in the negative:
Appellant contends (1) that no tender was pleaded; (2) that the tenders were not kept good by payment into court; (3) that the defenses were inconsistent; and (4) that the court was in error in instructing the jury that, if Hill objected to the tender as being insufficient in amount, he was bound to say so at the time, and if he did not, and refused the tender on other grounds, as if nothing was due, or that it was past due, he cannot now raise the question as to the sufficiency of the amount tendered.
The proceeding to recover possession is based upon an alleged default, and declaration of forfeiture. If the tender was made, it deprived plaintiff of the right to declare a forfeiture, upon the same principle that a tender of the amount due upon a mortgage will operate to discharge its lien. The creditor, by refusing to accept, does not forfeit his right to the thing tendered, but he does lose all collateral benefits or securities. Kortright v. Cady, 21 N.Y. 366; Tiffany v. St. John, 65 N.Y. 314; Frost v. Bank, 70 N.Y. 553; Caruthers v. Humphrey, 12 Mich. 270; Van Husan v. Kanouse, 13 Mich. 303; Renard v. Clink, 91 Mich. 2, 51 N.W. 692.
The general rule is that all matters of defense not going to controvert the whole of plaintiff's cause of action as averred should be noticed. 1 Shinn, Pr. � 754. The defense here went to the whole of complainant's case, and it was not necessary that notice thereof be given. Again, How. St. � 8299, contemplates a plea of not guilty, simply.
Nor do we think that the defendant, by making proof of tender, was estopped, under the circumstances of this case, from showing the agreement that the work done upon the barn was to be applied in payment of the interest. The complaint in...
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