Kuhns v. Chicago, Milwaukee & St. Paul R'y Co.

• Decision Date: 18 March 1885
• Citation: 22 N.W. 661,65 Iowa 528
• Parties: KUHNS v. THE CHICAGO, MILWAUKEE & ST. PAUL R'Y CO
• Court: Iowa Supreme Court

22 N.W. 661

65 Iowa 528

KUHNS v. THE CHICAGO, MILWAUKEE & ST. PAUL R'Y CO

Supreme Court of Iowa, Council Bluffs

March 18, 1885

Appeal from Linn Circuit Court.

ACTION to recover double the value of three heifers which were killed by a train on the defendant's road at a place where the right to fence existed. The defendant pleaded a tender or offer in writing to pay a certain amount of money and that the tender had been kept good by the payment of the money to the clerk. To this defense a demurrer was sustained and on the trial there was a verdict and judgment for the plaintiff. The defendant appeals.

AFFIRMED.

John W Cary, D. S. Wigge, and Sheean & McCarn, for appellant.

Herrick & Doxsee, for appellee.

OPINION

SEEVERS, J.

I.

The offer in writing to pay, or tender pleaded, is in these words:

"CHICAGO, MILWAUKEE & ST. PAUL RAILWAY--SPECIAL AGENT'S OFFICE.

"MILWAUKEE, April 18, 1882.

"Phillip Kuhns, Esq., Centre Junction, Iowa: On the seventh inst, I wrote you, offering $ 200 in settlement of your claim for three heifers killed March 3, to which I have received no reply, but am in receipt this morning of thirty-day notice served upon our agent at Monticello, claiming $ 300 on account of above accident. On a review of the papers connected with the case, I think it possible that I have underestimated the stock in question, and to avoid litigation I am willing to allow you $ 250, which I am confident represents the full value of the stock killed. In fact, it would have been very difficult for you to have sold these heifers at that figure in cash. We dislike litigation, knowing its cost to both parties. If you prefer to bring an action against the company rather than accept the above offer, although it may cost us somewhat more than the amount named, I shall have the satisfaction of knowing that you have received much less than the $ 250, for you may be assured that we will fight the case bitterly. I do not say this as a threat, but, feeling that I have now made all possible efforts to compromise the claim on a fair basis, if you force a law suit upon us, we shall feel it incumbent upon us to make it as expensive for you as possible."

It is provided by statute that "an offer in writing to pay a particular sum of money is equivalent to the actual tender of the money." Code, § 2105. This statute simply dispenses with a production or actual tender of the money. This is the only effect. In other respects the rule of common law prevails. Shugart v. Pattee, 37 Iowa 422. To make a valid tender at common law, the money must be produced and tendered unconditionally. If it be in full of all demands, or on condition that a receipt be given or if it be offered by way of boon, with a denial that any debt is due, it cannot be regarded as sufficient. 2 Greenl. Ev. § 605; Wood v. Hitchcock, 20 Wend. 47; Latham v. Hartford, 27 Kan. 249; Richardson v. Boston...