Curtiss v. Greenbanks

Booh Account. Tender. The balance found due by the auditor, is conclusive, so far as the account is concerned, on both parties, if no exception is taken to the ruling of the auditor in ascertaining that amount. Where bank bills were placed on the table in the presence of the plaintiff, the amount stated, and capable of being taken into immediate possession, if plaintiff had been willing to receive it, and was duly paid to the auditor, and is brought into court, it was held, that this was a good tender, and sufficiently conformable to all legal requirements. Where money is tendered and refused, the person tendering it is at liberty to use it as his own, all he is under obligation to do, is to be ready at all times, to pay the debt in current money, when requested. But if the tender is of specific articles, the property tendered cannot be retaken, or disposed of in any way, by the person tendering.

Book Account. Judgment to account was rendered in the county court, and an auditor appointed, who reported the facts substantially as follows:— The defendant, (who owned a woolen factory, in Barnet, Vt.) in the month of November, 1849, through an agent authorized for the. purpose, hired the plaintiff, as a master carder, and one Robertson, as a master spinner, to work in his factory, the plaintiff at $1.25 per day, and the said Robinson at $1.50 per day. They came on to Barnet from Lawrence, Mass., on the 17th day of December, 1849, to commence work for defendant, under said hiring. The defendant was unwell at the time, and when plaintiff reached Barnet, was violently sick and deranged, and remained so about three weeks after plaintiff’s arrival. When the defendant had so far recovered, as to know that the plaintiff and said Robertson had come, he sent for them to come to his room, and had an interview with them. On this occasion, the defendant told plaintiff and said Robertson, that owing to his sickness, it was uncertain when he should be able to start his mill, and that he could not afford to pay them the wages agreed upon, and that under the circumstances, if they insisted on the contract price, he would pay them up, and let them return; but if they saw fit to remain, he would do what was right, with, regard to their wages. To this 'last proposition, plaintiff and said Eobinson assented and agreed, and they remained until the mill was put in operation, in March, and then commenced work at the business for which they were hired. Up to this, time, plaintiff worked for defendant, whenever any thing offered, and as occasion required, and spent some time at work on defendant’s machinery in the mill, but for the most part had his time to himself. The defendant offered to prove, that plaintiff was not a skillful hand at the business, for which he was hired. To this, plaintiff objected, on the ground that defendant’s remedy, in that case, would have been to discharge him, failing to do so, he was liable for the contract price. The auditor admitted evidence on this point, and it was proved that plaintiff was not equal to the recommendation which was sent to defendant, by the agent who hired him; that he never had charge of a card-room before, as master carder. This testimony was considered by the auditor, and had an influence in fixing upon plaintiff’s wages. Although defendant so far regained his health, as to start his mill and keep it in operation, from some time in March, to the middle of May, he was then obliged to give up the business, (in consequence of ill health,) and leased his factory on the 15 th day of May, 1850 ; a settlement was then made with said Eobertson, who accepted seven-shillings per day, and the plaintiff’s account was made out at five, shillings per day, and presented to him. for settlement on several* occasions, to which he made no objection, except as to amount off wages. That on one occasion, before the commencement of this: action, plaintiff was sent for, and went to defendant’s sick room,, for the purpose of attempting a settlement; the account was them laid out on the table, and the balance, $53.00 in bank bills and 441 cents in change, was placed, with the account, on a table- in. the room, in plaintiff’s presence, by defendant’s book keeper; and* he* was told the same was ready for him, though it was not formally presented, or handed out to him. No objection was made to the-, kind of money. Subsequent to this, the defendant ascertained that one Stevens-had charged him one dollar extra, for use of a team,, which the plaintiff was furnished to go to St. Johnsbury, pn defendant’s business, but which he drove around by Danville on. his return, on his> own account; defendant added this to his account against plaintiff, making plaintiff’s balance one dollar less than was tendered as above, (if deemed a tender,) and this sum of $52.44 was placed in the -auditor’s hands, on the hearing, and is brought into court, though not the identical money previously offered. It did not appear that the defendant placed the said money in any particular person’s hands, and kept the same in readiness for plaintiff; nor did it appear that plaintiff had ever called for the same. The auditor found due plaintiff on the. 15th day of May, A. D. 1850, a balance of fifty-two dollars and forty-four cents. . The county court, December term, 1851, — Poland, J., presiding, accepted the report and rendered judgment for the plaintiff thereon. Exceptions by defendant. 1. The tender in bills was good, not being objected to on that account. 3 Stephens N. P. 2603 — 4. Snow v. Perry, 9 Pick. 539. Warren v. Mains, 7 Johns. 476. 2. The finding of the auditor, shows that the plaintiff must have understood it as a tender for the account, and he might have taken it if he would. It is also manifest, that the only reason of his declining^ was, he claimed more. Sargent v. Graham, 5 N. H. 440. 3. A tender of $53.44, is a good tender for $52.44, as the former embraces the latter, &c. But in book account there is no plea of a tender. The technicalities of pleading are dispensed with. If the money in fact be tendered before the suit, it is sufficient to prove the fact before the auditoi’, and lodge the money with the auditor, provided the same be returned by him into court, with ,the report. 1 Selwyn N. P. 152 — 3, and note 83. 3 Stephens N. P. 2605. Dean v. James, 4 B. & A. 546. Woodcock v. Clark, 18 Vt. 333. 4. That defendazit did zzot bring the same identical money into (Court, makes no difference. One gold eagle tendered, is no more .or less than another gold eagle brought into court. Formezdy a (tender after dark was not good, but now a tender in the evening is held .good. Thomas v. Hayden, cited in Sweet v. Harding, 19 Yt. 58,7. Insisted, that the tender should he held inoperative* for the reasons,— 1st, that it was insufficient as to amount. 2d, that it was not properly kept and presented to the auditor. It appears from the auditor’s report, that the defendant did not keep the money in readiness for plaintiff, and that the money produced before the auditor, was not the same, either in denomination or quality. This was defeated by defendant producing a less sum before the auditor, than that tendered. The plaintiff could not have avoided the tender, if otherwise good, by a demand and refusal of a larger sum than that tendered, but must demand the precise sum. Chit, on Con. 802, and cases there cited. Thetford v. Hubbard, 22 Yt. 440. And can it be said that defendant may tender such sum as he pleases, and produce another and less sum ?