Noyes v. Wyckoff

• Decision Date: 23 April 1889
• Citation: 114 N.Y. 204,21 N.E. 158
• Parties: NOYES v. WYCKOFF.
• Court: New York Court of Appeals Court of Appeals

114 N.Y. 204

21 N.E. 158

NOYES

v.WYCKOFF.

Court of Appeals of New York,

Second Division.

April 23, 1889.

Appeal from supreme court, general term, Second department.

Action by Daniel J. Noyes against Jacob T. Wyckoff for the conversion of certain iron ore. A judgment for plaintiff entered on the report of the referee was reversed by the general term, and plaintiff appeals.

TENDER.

1. A tender of money secured by a chattel mortgage, which a purchaser of the mortgaged property testifies he made ‘unconditionally, and in payment and extinguishment of’ the creditor's lien, is bad, as the condition of extinguishment of the lien of the mortgage is attached.

TENDER.

2. Where the mortgage debt is payable on demand, and the payment of it is not assumed by the purchaser, a tender by the purchaser will not be effectual until the debt has become due by a demand by the creditor, or a tender by the debtor.

John L. Hill, for appellant.

Edward F. Brown, for respondent.

BROWN, J.

This case comes to us upon an appeal by the plaintiff from an order of the Second judicial department, which reversed a judgment in his favor entered upon a report of a referee, and directed a new trial. The plaintiff has given the usual stipulation for judgment absolute against him in case the order appealed from is affirmed. The defendant was the holder of a chattel mortgage upon a lot of iron ore lying upon a farm in New Jersey owned by Elizabeth Fitzgerald, and known as the ‘Styles Farm.’ The mortgage upon its face was given as security for the payment of a promissory note, bearing even date with the mortgage, made by Henry W. Fitzgerald, and payable on demand for the sum of $1,900. Defendant also held a deed of the farm given as security for advances made to Miss Fitzgerald, but which was in fact a mortgage, and admitted to be such. Plaintiff purchased the farm and the ore from Miss Fitzgerald on November 16, 1880. The deed of the farm was ‘subject to the existing liens.’ With reference to the chattel mortgage, the referee has found that it was intended to be drawn to secure the payment of $3,102, and, by mistake, was drawn for the sum named in it; and it is admitted in the case ‘that it was a valid lien upon said iron ore for at least three thousand one hundred dollars, and that plaintiff took title with knowledge of the existence of such lien and its amount, and that it was intended to be payable in, and is governed as a contract by the laws of, New York.’ On December 3, 1880, plaintiff tendered to the defendant $3,200 in payment and extinguishment of the lien of the mortgage on said iron ore. At that time defendant claimed more to be due to him than was tendered. No question is now made, however, that the tender was insufficient in amount, but the point is taken that it was defective in form. Defendant refused to accept the amount tendered, and on June 18, 1881, entered upon the farm, and sold all the ore covered by the mortgage, and at such sale became himself the purchaser. The action was thereupon brought by the plaintiff to recover for a conversion of the ore, and he had judgment at the trial. If, upon the record before us, any sufficient ground appears for the reversal of the judgment entered upon the referee's report, the order of the general term must be sustained. Mackay v. Lewis, 73 N. Y. 382.

Numerous questions have been argued upon the briefs submitted, but it is necessary to refer to but two of them, as upon these the order of the general term must be affirmed. The tender made by the plaintiff was clearly bad in form. A tender of money in payment of a debt, to be available as a defense, or as the foundation of an action in favor of the party making the tender, must be without qualification. There is no principle by which a party is to be absolutely barred from litigating his claim for a larger sum than that paid, merely because he accepts part. The actual acceptance of the amount tendered would only extinguish a claim in case it...