Sweetland v. Russell Tuthill.
| Decision Date | 30 June 1870 |
| Citation | 1870 WL 6294,54 Ill. 215 |
| Parties | GEORGE SWEETLANDv.RUSSELL TUTHILL. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Perry county; the Hon. MONROE C. CRAWFORD, Judge, presiding.
The opinion states the case.
Mr. EDWARD V. PIERCE and Mr. S. G. PARKS, for the appellant.
Mr. GEORGE W. WALL, for the appellee. Mr. JUSTICE WALKER delivered the opinion of the Court:
This was an action of debt, brought by appellant against appellee. The declaration contained two special counts and the common money counts. The special count was on a promissory note, dated May 1, 1868, for $100, with interest at ten per cent per annum. The other special count was on a similar instrument, for $300, bearing date on the twenty-second day of February, 1868. As to the first count, appellee filed no plea, but brought in and tendered in court $110 as the amount due on the note declared on, but not being received, it was deposited with the clerk for appellant. A default was taken on that count.
Pleas were filed to the other counts and a trial was had, resulting in a verdict for the defendant on these counts, and the damages were assessed under the first count at $109.91.7. Thereupon the court rendered a judgment against plaintiff for the costs of the suit. The record is brought to this court, and we are requested to reverse the judgment on various grounds.
It is first urged, that our practice does not warrant the payment of money into court, so as to escape payment of the costs of the suit. This may be true, but we deem it unnecessary to determine that question in this case. The law does clearly authorize a debtor to make a tender of the amount he owes his creditor, and thus relieve himself from costs, if suit shall be afterwards brought. And no reason is perceived why a debtor may not, even after suit is brought, and at any time before the trial, make a sufficient tender and relieve himself from future costs. But in such a case, he should tender a sum sufficient to cover all that the creditor then has a right to recover, whether of debt, interest or costs. If he tender less, then the tender is not good, and the plaintiff would be entitled to recover costs. In this case, costs had accrued, which appellant had a right to recover, and the tender was not sufficient to cover them, it only being some eight cents more than the note and interest. He, then, remained liable for costs. Had he tendered enough to cover the debt and costs, then this...
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...has a right to recover, whether of debt, interest or costs. If he tender less, then the tender is not good.'" (quoting Sweetland v. Tuthill, 54 Ill. 215, 216 (1870))). Consequently, it is incumbent upon the debtor "to make sure that his tender is sufficient in amount." Smith, 296 N.E.2d at ......
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...then has a right to recover, whether of debt, interest or costs. If he tender less, then the tender is not good, * * *.' Sweetland v. Tuthill, 54 Ill. 215, 216. 'Since the insurer conceded that it was liable for some interest and costs at the time of the alleged tender, although it disputed......