Duke v. Pugh

DeviN, J.

The determinative issue raised by the pleadings and submitted to the jury was whether the sum of $426.00 tendered to the defendant by the plaintiff 29 June, 1939, was the amount then due on the note and mortgage. Upon that issue the trial judge charged the jury if they found by the greater weight of the evidence that plaintiff had reduced the principal to $300.00, and that on 29 June, 1939, there was a balance of only $300.00 due, which, with interest, would amount on that date to $426.00, and that this amount was tendered on that date, they should answer the issue in favor of the plaintiff; otherwise not.

This instruction, to which exception was duly noted, overlooked the testimony of the plaintiff that he had reduced the principal of the debt to $300.00 4 June, 1932; that he did not claim any other payment thereafter, and that on 29 June, 1939, he had tendered $426.00 in full settlement. From this testimony it is apparent that the tender fell short of the amount due by $1.25. The difference was the interest on $300.00 for twenty-five days (4 June to 29 June). The defendant was not required to accept less than the full amount of his debt and interest.

It is true, taking the figures in accord with the testimony of the plaintiff, the difference was small, but plaintiff had staked his case upon the claim that -$426.00 was the exact amount due and had tendered that amount, and no more, in full settlement. Defendant could not be required to cancel and surrender his note and mortgage for less than the full amount due.

To constitute a valid tender the offer must include the full amount the creditor is entitled to receive, including interest to the date of the tender. 62 C. J., 660; 26 R. C. L., 639;

Owens v. Ins. Co., 173 N. C., 373 , 92 S. E., 168 ;

Smith v. Pilcher, 130 Ga., 350 . “Mistake in tendering an amount less than the sum due is the misfortune of the tenderer, and the position of the parties remains the same as if no tender had been made.” 62 C. J., 661.

In Rolfe v. Ins. Co., 106 Me., 345, it was said: “On July 18, 1907, the defendant tendered to the plaintiff $584.23. But this was not enough, for there was due on that date, including interest, $584.32. The differ *582 ence is small, but the plaintiff was entitled to it. The tender was insufficient in amount.”

Defendant’s exception to the court’s failure to call to the attention of the jury this phase of the case, as presented by the testimony of the plaintiff, must be sustained. The error pointed out was prejudicial to the defendant, and for this reason we are constrained to grant a New trial.