Wilson v. Doran

• Decision Date: 19 June 1888
• Parties: WILSON v. DORAN et al.
• Court: New York Court of Appeals Court of Appeals

110 N.Y. 101

17 N.E. 688

WILSON

v.DORAN et al.¹

Court of Appeals of New York.

June 19, 1888.

Appeal from general term, supreme court, Fifth department.

Action by Augusta A. Wilson against S. Gregor Doran and another. From an order of the general term affirming the judgment of the special term ordering a nonsuit, plaintiff appeals.

1. TENDER-AFTER SUIT BROUGHT-PAYMENT INTO COURT-ADMISSION OF PLAINTIFF'S RIGHT TO SUE.

Where, owing to a previous general assignment for the benefit of creditors, the plaintiff took no right of action by an assignment of the debtor's interest in a stock transaction, a tender, and payment into court of the amount tendered, admits the contract or duty sued upon, and the plaintiff's right to the amount tendered, but does not prevent the defendants showing, to defeat further recovery, that plaintiff acquired no title to the original cause of action.

2. TENDER-PRACTICE-NONSUIT.

Though the plaintiff had no right of action except such as arose from a tender and payment into court by the defendant, a nonsuit cannot be granted where it is not shown that there was a sufficient tender before suit brought, and defendant gave no notice of the payment into court, as required by Code Civil Proc. N. Y. s 732 in order to make a valid tender after suit brought.

3. TENDER-SUFFICIENCY OF TENDER-PROVINCE OF JURY.

Where a tender, before suit brought, was admitted, but claimed to be insufficient because made to one who had assigned the claim, and not to the assignee, the court cannot withdraw the question from the jury, and grant a nonsuit, on the ground that there had been a sufficient tender.

4. TENDER-FAILURE TO GIVE NOTICE-WAIVER OF OBJECTION.

The failure to give the notice required by Code Civil Proc. N. Y. s 732, to make valid a tender after suit brought, is not waived, though the plaintiff do not raise the objection before trial.

Jas. S. Carlock, for appellant.

John N. Beckley, for respondents.

ANDREWS, J.

It was held by the general term that the title of the plaintiff to the demand in suit was put in issue by the pleadings, and we concur in that opinion. Bennett v. Manufacturing Co., ante, 669, (decided June 19, 1888.) There was no substantial conflict in the evidence upon the point that the original assignor, before his assignment to Davis & Co., had, by virtue of a general assignment for the benefit of his creditors, transferred all his interest in the stock transaction, out of which the claim in controversy arose, to his general assignee. If there was nothing else in the case, the nonsuit was properly directed on the question of title, because the fact of this prior transfer left nothing to be transferred by George W. Wilson, the plaintiff's husband, to Davis & Co., his immediate assignees, and Davis & Co. had nothing which they could transfer to the plaintiff. The judgment should therefore be affirmed, unless the fact that the defendants in their answer pleaded a tender, before suit brought, to George W. Wilson and to Davis & Co. of the sum of $189.30, on the cause of action sued upon, and concurrently therewith paid the money tendered into court, entitled her to litigate the question of the amount of the defendants' liability beyond the sum tendered, independently of the question of the plaintiff's title, or unless it entitled her at least to judgment in her favor for the amount tendered. The defendants in their answer, after alleging the tender of the sum stated, and that they have ever since remained and still are ready to pay the sum tendered, aver that ‘they now bring the said sum into court, ready to be paid to the plaintiff if she will accept the same.’ It is insisted, on the part of the plaintiff, that the defendants, by the plea of tender, and the payment of the money tendered into court, admitted, not only the existence of the cause of action set out in the complaint, and the right of the plaintiff to the amount tendered thereon, but also her title to the entire cause of action, and her right to recover damages beyond the amount tendered, although in fact she has no title, if the proof would justify a recovery of a greater amount if the action had been brought by the true owner. The authorities upon this question have been elaborately considered by the general term in the prevailing opinion. It is admitted that the tender, and payment of the sum tendered into court, admits the contract or duty sued upon, and the right of the plaintiff, under the contract and assignment, to the sum tendered. But we understand the authorities to hold that the admission, in such a case, goes no further, and that it is open to a defendant to defend against any claim by the plaintiff beyond the sum tendered, upon any ground consistent with an admission of the original contract or cause of action. The defendant may, notwithstanding, insist upon the statute of limitations, payment beyond the amount tendered, or other defense. Cox v. Parry, 1 Term R. 464; Reid v. Dickons, 5 Barn. & Adol. 499; Meager v. Smith, 4 Barn. & Adol. 673; Spalding v. Vandercook, 2 Wend. 431. It having been shown, therefore, that the plaintiff had not acquired title to the original cause of action, her right to recover thereon beyond the sum admitted by the tender was, upon the same principle, defeated.

The remaining question relates to the nonsuit granted by the trial court, notwithstanding the plea of tender. This cast upon the plaintiff the costs of the action. The rule is well settled that a tender before suit brought, to be available, must not only be pleaded, but the defendant, before or with his plea, must pay the money into court, so that it may be subject to the plaintiff's order; and it was also necessary, under the former practice, that the plea should be accompanied by a notice to the plaintiff's attorney that the money had been paid into court. Brown v. Ferguson, 2 Denio, 196;Sheriden v. Smith, 2 Hill, 538;Dixon v. Clark, 5 C. B....