Moynahan v. Moore

• Citation: 9 Mich. 9
• Court: Supreme Court of Michigan
• Decision Date: 14 November 1860
• Parties: Johanna Moynahan v. Stewart Moore

9 Mich. 9

Johanna Moynahan v. Stewart Moore

Supreme Court of Michigan

November 14, 1860

Heard October 9, 1860

Error to Wayne circuit. The case is sufficiently stated in the opinion.

Judgment reversed, and a new trial granted.

H. A Morrow, for plaintiff in error, cited in support of his position that the tender was sufficient: 4 Man. and Gr., 574; Peak's Cas., 88, 179; 8 M. and W., 298; 34 Me. 283; 3 Bing. N. C., 869; 8 Barb. 408.

L Bishop, for defendant in error:

The tender, being conditional, was not good: 3 Camp. 70; 4 Camp 136; 6 Taunt. 336; 20 Wend. 47; 8 Barb. 408; 23 Barb. 490; 2 C. and P., 50, 51; 6 C. and P., 237; 3 Bing. 304. But if good, it must be kept good by bringing the money into court: 3 Cow. 336; 12 Wend. 393; 14 Wend. 221; 23 Wend. 341; 2 Hill 538; 12 Mass. 450; 3 Pick. 48; 24 Pick. 168; 24 Vt. 536; 25 Penn. St. R., 354; 2 Gilm. 679; 12 Ill. 86; 16 Ill. 262; 10 E. L. and E., 513; 12 La. An. R., 266; 1 E. D. Smith, 197; 16 N. Y., 582; 21 Ill. 578; 1 H. Black., 24; 1 B. and P., 382; 3 B. and P., 603; 6 Taunt. 336.

OPINION

Martin Ch. J.

The plaintiff employed the defendant to repair a carriage, and the defendant retained the carriage under a mechanic's lien for the amount due him for making such repairs. To obtain possession of the property the plaintiff tendered, as the jury finds, sufficient to discharge the lien. This tender necessarily operated to release the property, and the plaintiff was entitled to immediate possession of it. That such would be the effect of an unconditional tender is not doubted; but as the tender in this case was made upon condition that the carriage should be delivered up, it is thought that it has not such effect. A tender made to procure the possession of property can hardly be called conditional because it is accompanied with a demand for the property. But it does not appear that any objection was made to the tender by the defendant, except for insufficiency--he demanding more than the sum offered; and as the jury find that sufficient was tendered, the tender was good, even were the strictest rule to prevail; upon the well established principle that an objection made at the time of tender precludes all others, and if that be not well grounded, the tender will be held good.

It is claimed that the want of the money in court obviates the effect of the tender. Were this an action by Moore to recover compensation for the repairs, the want of the money in court would render the tender nugatory; as the effect of tender in such cases is to stay interest and relieve from costs, and therefore the party making the tender must always have the money within reach of his creditor. But in this case, the tender having once operated to discharge the lien, it was gone forever, and nothing could revive it. The reasons which require the money to be brought into court do not apply in such a case. By refusing to receive the money tendered, the defendant lost his lien, and can only rely upon the personal...