Curiac v. Packard

By the Court, Sawyer, J. Plaintiff, Curiae, sued the firm of D. Abadie Freres, December 15th, 1862, and attached their stock of goods. Thereupon Abadie Freres, as principals, with defendants Packard and Burton as sureties, gave to the Sheriff a bond entitled in said cause, in the sum of two thousand five hundred dollars, reciting the attachment by him of said goods, and conditioned that “if the said plaintiff recover judgment as against the said defendants in the above entitled action, that the said judgment will be well and truly paid to the extent of the said sum of two thousand five hundred dollars, including costs.” Upon [196]the execution of the bond, the property attached was released. The next day after giving the said bond, (December 16th) the defendants in that suit, Abadie Fréres, tendered to the plaintiff in the suit the sum of two thousand dollars—the principal of the note in suit—in United States legal tender notes, claiming that they should be received at their face; and the full amount of interest and costs accrued in the suit in coin. The plaintiff offered to receive the legal tenders at their market value, and credit the amount on the notes, but refused to receive the sums tendered at th'e full value expressed on the face of the notes. A paper entitled in the cause admitting the tender as above stated, signed “Charles E. Huse, attorney for plaintiff,” was filed in that cause. Defendants never answered, and judgment by default was entered against them, March 18th, 1864, for the amount of the note, interest and costs. The judgment not being paid, the Sheriff assigned the beforementioned bond, executed by defendants, Packard and Burton, as sureties for “Abadie Fréres,” to plaintiff, Curiac,. who thereupon commenced this suit. The defendants, in their answer, aver that after the making of the said bond the said principals, “Abadie Fréres,” tendered to plaintiff the full ■amount of the sum due in the action against them, which the bond was given to secure, together with interest and costs then accrued, and that thereby the "said sureties became and were discharged. Upon the trial the Court found the facts as alleged, held the sureties to be discharged by the tender, and accordingly rendered judgment for defendants. A motion for new trial having been made and denied, the plaintiff appealed from the order.

Appellant insists that the only evidence of the tender is the admission in writing, by plaintiff’s attorney, filed in the case of Curiac v. Abadie et al., and that the admission thus made in another case by the attorney of record is not evidence of the fact in this case. The Judge, in his finding, says the facts were admitted. The statement does not, however, directly so state. But it appears by the statement that “the defendant offered and read in evidence, without objection, the admission