Ferrea v. Tubbs
Before: Garoutte
Synopsis
Tender Pending Appeal from Judgment—Stoppage of Interest.— A tender by the defendant, to the plaintiff, pending an appeal by the plaintiff from a judgment in his favor, of the full amount of the judgment, with all costs, and interest to the date of the tender, if refused, stops interest from the date of the tender.
Id.—Tender to Client Pending Suit—Authority of Attorney.—A tender pending suit is properly made to the opposite party personally, and need not be made to his attorney, whose authority to control the suit does mot preclude such tender. It primarily rests with the client, and not with his attorney, to decide whether or not the amount tendered shall be accepted in full satisfaction of his claim for money due.
Id.—Refusal of Tender—Release of Interest.—The refusal by a plaintiff pending his appeal from a judgment of a valid tender made to him by the defendant, operates as a release by the plaintiff as judgment creditor of all interest which would otherwise have accrued thereon after the date of the tender.
Id.—Conditional Tender—Demand for Receipt.—In this state, under section 1499 of the Civil Code, a debtor has a right to demand a written receipt from his creditor of any property delivered in performance of his obligation; and a valid tender of a sufficient amount may be properly conditioned upon a written receipt for the money tendered as payment in full of a judgment with interest and costs.
Id.—Deposit of Money Tendered.—The money tendered need not be deposited in court, when it is not sought to extinguish the obligation, but merely to stop the running of interest.
Id.—Interest upon Judgment—Stay of Execution—The stay of execution upon a judgment for the plaintiff pending an appeal therefrom by the plaintiff does not operate to suspend the running of interest, or preclude a tender by the defendant for the purpose of stopping interest thereon.
Id.—Application to Supreme Court—Jurisdiction.—The respondent was not bound to make any application to the supreme court pending the appeal by the plaintiff for leave to make the tender. The supreme court took the case as made up in the trial court, and had no jurisdiction to examine into the merits of the tender.
Id.—Remittitur—Payment of Money Tendered—Duty of Superior Court.—Upon the going down of the remittitur, the defendant had the right to bring the money tendered into court, and it then became the duty of the superior court to inquire into the effect of the tender, and to determine the amount required to satisfy the judgment.
GAROUTTE, J. Plaintiff in an action for damages recovered a judgment of four thousand eight hundred dollars. He appealed from this judgment, and also from an order refusing his motion for a new trial. Pending the appeal to this court defendants tendered him the full amount of the judgment, with all costs, and interest to that date. This tender was refused. Subsequently upon appeal the judgment and order denying a new trial were affirmed. Upon the return of the remittitur to the superior court, defendants asked for an order that the judgment be satisfied conditionally upon the payment into court of the amount of the tender; and at the same time again tendered to plaintiff the aforesaid amount, and paid the same into court. Whereupon an order was made satisfying the judgment. The present appeal is prosecuted from that order, the real question being, Did the tender made to plaintiff by defendants pending his appeal to this court stop the running of interest upon the judgment from which his appeal was taken?
We see no force in the contention that the tender should have been made to plaintiff’s attorneys rather than to plaintiff him[690]self. While it may he assumed that the attorney has sole control of his client’s case, as far as any question of practice and procedure is concerned, yet there can he no question hut that a tender of money pending the litigation may be made to the client. The statute expressly authorizes the judgment creditor to satisfy the judgment, and section 1488 declares that an offer of performance must he made to the creditor, or one authorized by him to receive the amount due. It primarily rests with the plaintiff, and not his attorneys, to decide whether or not an amount tendered should be accepted in full satisfaction of a claim for money due, and this tender was made to the proper party.
It is next claimed that the tender was conditional, and therefore of no force. The condition was that plaintiff deliver a receipt for said money “as payment in full for said judgment, with interest and costs.” The offer is claimed to be violative of section 1494 of the Civil Code, which provides: “An offer of performance must be free from any conditions which the creditor is not bound on his part to perform.” Whatever may he the law in other jurisdictions, especially in England, as to the effect upon the validity of a tender by the demand of a receipt from the creditor at the time, we are convinced that the true rule in this state is that a receipt may be demanded without jeopardizing the legality of the tender. Our code provides: “When a debtor is entitled to the performance of a condition precedent to, or concurrent with, performance on his part, he may make his offer to depend upon the due performance of such condition.” (Civ. Code, sec. 1498.) “A debtor has a right to require from his creditor a written receipt for any property delivered in performance of his obligation.” (Civ. Code, sec. 1499.) By virtue of sections 1498, 1499, a debtor has a right to demand of the creditor a receipt. And by virtue of section 1494 the offer of performance need only be free from conditions which the creditor is not bound to perform. If the debtor tender a sufficient amount of money, he is entitled to a receipt in full, and may couple his tender with a demand for such receipt. Again, it was not necessary to deposit the money in court after tender made, in order to stop the running of interest. A deposit in court is only demanded when it is desired
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