Indiana Bond Company v. Jameson
| Decision Date | 25 January 1900 |
| Docket Number | 2,979 |
| Citation | 56 N.E. 37,24 Ind.App. 8 |
| Parties | INDIANA BOND COMPANY v. JAMESON ET AL |
| Court | Indiana Appellate Court |
From the Marion Circuit Court.
Reversed.
S. M Richcreek, for appellant.
O. B Jameson and F. A. Joss, for appellees.
ROBINSON J. Wiley, J., took no part in this decision.
Appellant purchased an assessment roll containing a number of names of property owners, approved by the trustees of Irvington, for the construction of a sewer, and sued appellees for the amount of the assessment against them, $ 1.90, and to foreclose the lien.
The second paragraph of appellee's answer alleged that, at all times before and at the time of and ever since the beginning of the action, she was, and is, ready and willing to pay the full amount of appellant's claim, principal and interest; but that, before the commencement of the suit, appellant demanded of appellee the sum of $ 10.85 in payment thereof, itemizing the claim as follows: $ 1.90 principal, twenty-five cents interest, $ 8.70 "court costs and attorney's fees", and refused to accept any lesser amount than $ 4.05 in payment thereof, though at all such times there was not due or owing in excess of $ 2 for principal and interest, and at such times refused the $ 4.05 unless upon the condition that "plaintiff or its attorney should simply note payment of said assessment upon the assessment rolls in its or his hands, and give its or his receipt therefor, thereby conditioning the acceptance of even said sum of $ 4.05 in payment, as aforesaid, upon the condition--contrary to the statute in such case made and provided--that the plaintiff would not make entry of the receipt of such money upon the proper public record, and thereby discharge the lien of said assessment; and this defendant now brings into court the sum of $ 2.05 for the use of the plaintiff, in full payment of the assessment and claims sued on in plaintiff's complaint herein, and being the full amount of, and more than, the principal and interest of said assessment." The answer does not undertake to plead a tender before suit, but to plead facts showing a tender before suit would have been unavailing.
A tender may be waived by words or acts, as where a party declares positively, when an offer is made to pay him, that nothing is due him, or that he will accept no money; or where the debtor, having the present ability, offers to pay the debt, but the creditor prefers to let it remain, and the debtor consents, and retains the money; or where the creditor purposely absents himself to avoid a tender; or where he has designedly evaded a tender, and brought his action so soon that the tender could not be made before the commencement of the action; or, where he refuses to accept a tender on certain specific objections, he can not afterwards raise others which might have been readily met. 7 Wait Act. & Def. p. 593, and cases there cited; Abbott's Trial Ev. p. 816; Holmes v. Holmes, 12 Barb. 137.
In Hoyt v. Sprague, 61 Barb. 497, a carrier refused to deliver grain to a consignee unless the full amount of freight was paid, without any deduction for damage or short delivery, and, in holding that a tender was waived the court said: "The true rule I take to be this: That the mere assertion, unaccompanied by any other act, of a lien greater in amount than the lienor is entitled to, will not obviate the necessity of a tender; for it may be that the right amount would be accepted; but when, as here, there is an absolute refusal to deliver up property unless a claim to which the party is not entitled is discharged, so that it appears that the lien claimant says, in effect, do what you will; tender any amount you please; unless it be the whole of my unlawful demand, I will not accept it, nor surrender your property; then the law dispenses with the idle ceremony of making a...
To continue reading
Request your trial