Summary
TR( )VKR for 8 10 lbs. of leather, of the value of 336 dollars, alleged to have been converted by the defendant on the 1st January, 1811.
The cause was tried here at May term, 1817, on the general issue, and a verdict taken by consent for the defendant, subject to the opinion of the court upon a statement of facts in substance as follows :
Hadley gave Weld a note, dated August 9, 1808, for 300 dollars, payable in good merchantable leather, at cash price, in two years from January 1, 1809. When the note become due, Hadley tendered to the plaintiff a quantity of leather, but a dispute arose as to the price of leather, and Weld, thinking the quantity not sufficient to pay the note, refused to receive it, and Hadley took it away and used it. Weld then brought a suit upon the note ; Hadley pleaded the tender in bar, and issue being joined upon the tender, the jury-found that a sufficient quantity was tendered, and judgment was rendered in favour of Hadley.
After that suit was determined, Weld demanded the leather of the defendant, and tendered the expenses of keeping. Hadley refused to deliver the leather, and thereupon this suit was brought.
The cause was argued here at the last term by P. Noyes for the defendant, and J. Bell for the plaintiff.
To maintain this action, the plaintiff must have either a general or a special property in the leather. It is presumed that the plaintiff contends for a general property. A strict legal property of the plaintiff must be proved. Nothing short of this will maintain the action.
It is presumed that the plaintiff founds his right to She leather either upon the contract between him and the defendant, upon the tender by the defendant and his own refusal, or upon the former judgment in favour of the defendant. No other basis on which he can rest his claims can even be conjectured.
Did the contract of the defendant give the plaintiff a property in any of the defendant’s leather ? A contract binds the person of the contractor, and is to be enforced against him. Suppose. B. promises to deliver to C. a particular horse, at a day appointed, and fails to deliver him according to his contract, would it be contended that by any rule of the common law, that the horse became the property of C. in consequence of that promise, and that C. could claim the horse of D., to whom B. had sold and delivered him after the promise made to C. ? Much less can it be contended that the promisee may claim any specific part of the promisor’s goods not designated in the promise. “The “right (says Pothier) which the obligation gives to the “ creditor to prosecute for the payment of the thing, which which the debtor bound himself to give, is not a right, “ which it gives him to the thing, jus in re ; it is only aright “against the person of the debtor to have him condemned to “ give the thing. The thing which the debtor bound him“self to give continues still to belong to him, and the ered- “ itor can become owner of it only by the actual or fictitious “ delivery, which the debtor may make in discharge of the “ obligation. Until this delivery, the creditor has only the “ right to demand the thing, and he has that right only “ against the person of him who contracted the debt, his “ heirs or universal successors.” — Pothier on OVlig. N. 151. From this doctrine of Pothier, which perfectly agrees with our common law, it is clear that the contract of itself gave the plaintiff no property in the leather. ,
Did the tender, which was merely an offer of the leather by the defendant to the plaintiff, give the plaintiff a property in the leather ? If accepted, it would. The plaintiff contends now that his refusal is to have the same effect that his acceptance of the leather would have had. One effect it certainly had — it discharged Hadley forever from his contract ; and when a contract is discharged by the performance of it, or what is equivalent to a performance, the obligation of the debtor is as if the contract had never existed. It is on this principle that in actions, of assumpsit the general issue, “ never promised” is pleaded, when the promise has been fulfilled ; which plea on any other ground would not be true in such case. In what case can it be shewn that the discharge of one obligation, ipso facto, creates another ? Yet such must be the case, if any obligation exists after the tender.
It is presumed that it will not be contended that money tendered by the debtor, and refused by the creditor, becomes the property of the creditor in consequence of the tender. A tender of money does not discharge the obligation. It still exists, by our law, and the effects of a tender upon interest and costs may be avoided by a subsequent demand of payment. To save interest and costs, the debtor must have the money always ready when called for by the creditor. In a plea of tender, the debtor must say, that he offered the money to the creditor, and has been ever since, and still is, ready to pay it to him. This is on the principle that the original obligation still exists, and that no property in the money tendered passes by the tender to the creditor without acceptance. The money is still the property of the debtor : for if it be lost after a tender and refusal, he must bear the loss. If a debtor who has tendered money for his debt, is sued for the debt, and he pleads the tender, and brings the money into court, and offers it there to the plaintiff, it does not even then become the property of the credit- or till accepted by him. For if, after the tender in court, the suit abate by the death of the plaintiff, the bringing the money into court is no bar to a suit by the executors.— Bacon Ab., Tender I., Guillim’s edLondon. The rule of the court does not compel the creditor to accept the money, nor can the court make it his property, without his consent : otherwise no action could be maintained by the executor after the debt had been tendered to his testator in court. If it be contended that in ordinary cases the plaintiff has a right at any time after a tender in court to take the money, and the defendant is not permitted to withdraw it, we answer, this is not a consequence of any principle of law that vests the property in the plaintiff, but it is a rule of practice in court ; a rule known and understood by the debtor at the time he brings the money into court, to which rule and all its terms and conditions he agrees, when under it he brings the money into court. One of the implied terms of the rule is, that the defendant shall not be at liberty to take the money again in ordinary cases, though it should appear on trial that the money was not due to the plaintiff, but that the officer of the court shall hold it for the plaintiff, and deliver it to him at any time when he will accept it. This is similar to what in the French law is called consignation. Under this rule of practice, the debtor who pays the money into court, to induce the court to forbear to give judgment against Mm, agrees that the money shall remain in court and he delivered by the officer of the court to the creditor whenever he will accept it.
And it is on this like implied agreement that the court forbear to render a judgment for the same money for the plaintiff.
The reason then why the plaintiff in such a case may’ take the money at any time after it is brought into court, is this — The debtor, by availing himself of the rule for paying money into court, has agreed that the creditor may take it at any time, and that the officer of the court shall hold it, till the creditor will accept it. And the plaintiff’s right to take the money is not a consequence or legal effect of a tender only. — For, laying aside the idea of this rule of court, it is not easy to perceive why a tender in court, without acceptance, should have any more or other effect on the money tendered, than a tender out of court before the suit was brought.
The plea of tender and profert of the money in court is merely a repetition of the tender before made out of court.
Farther, laying aside the idea of that rule, and of one of the terms of it on the part of the court, which is an agreement that the officer of the court will keep the money for the plaintiff, whenever he will accept it, there seems to be no reason why the officer of court should be obliged to hold it as the plaintiff’s banker, if the tender in court was such a payment of the debt as transferred the property in the money to the creditor immediately, without his acceptance. The deposit of money under this rule, which seems to have every essential feature of the French consignation, is allowed by courts to prevent a debtor who is ready and willing topay, from being harassed and vexed by a persecuting creditor — and' the effect of it on the property deposited arises from the agreement of parties.
That the plaintiff may at any time take the money paid into court — is a general rale. But is said that if he proceed in his suit, he cannot afterward take the money, without leave of court(1). And in the case of money brought into court by an executor or administrator, defendant, who is not supposed to have a perfect knowledge of the debt, if the plaintiff is nonsuited the defendant is permitted to take the money again — the plaintiff is not allowed to take it(2). This shews that a tender, though in court, does not necessarily vest in the creditor any property in the money tendered.
It is settled, that if the plaintiff take issue on the tender, and it is found against him, he looses all remedy for his debt, and the defendant shall have the money that he tendered. (3). And yet in this case the obligation to pay the debt is forever discharged.
Littleton, speaking of estates on condition, (<S*ec. ‘¿So,Coke's Comm, page 207,) says, “ Be it remembered that in such case, where such tender of the money is made, and the feof-fee refuse to receive it, by which the feoffor or his heir enter, &c. then the feoffee hath no remedy by the common law to have this money, because it shall be accounted his own fully that he refused the money when a lawful tender of it was made unto him.”
Coke, in his commentary, page 207, puts several cases in which lie illustrates and confirms the doctrine of Lit-tleton.
It is certainly a new idea, and not found in the common law, that a mere offer (for a tender is no more) to pay or deliver any thing to a creditor in payment of a debt, and his refusal to accept it, makes the thing his property.
Littleton knew nothing of it when he said, in the section cited, that the person to whom the money was tendered hath no remedy by the common law to have this money. Nor w%s it known to Coke — if it had been be surety would have mentioned it in his commentary.
It is a well known principle that a deed or gift conveys no estate to the grantee, unless he accepts the deed or gift. His acceptance is never presumed against his express refusal. .
The article being dué by contract, can make no difference, unless a man is obliged, willing or unwilling, to become the owner of whatever is legally tendered to him in payment of a debt. We have already shewn that the law does not make him the owner of money that is tendered to him, -without his acceptance — and why should it force upon him any other article ?
The agreement of the creditor to accept the goods tendered is essential to his acquiring a property in them.
Pothier says, “ one cannot transfer his goods to another without his will concur in the acquisition of it.” Treatise on Obligations, sect. 2, p. 5, n. 4. The same writer says, (n. 537,) “ consignation is not properly a payment, for payment essentially includes the transferring of the property of the thing which is paid to the creditor ; and it is evident that the consignation does not transfer the property of the thing consigned to the creditor, as the creditor can only acquire it by receiving voluntarily the thing which is tendered to him. Dominium non acquiritur nisi corpore et animo; but though the consignation which is made on the refusal of the creditor to receive the thing, or sum due to him, which is , tendered to him, be not an actual payment, yet when it is validly made it is equivalent to a payment, and extinguishes the debt as well as actual payment made to the creditor.
And again, speaking of the effect of a consignation, Pothier says, (». 545,) “ if it be adjudged valid, the debtor is holden to have been discharged by it, and although, subtilitate juris, he remains proprietor- of the coins consigned, till they betaken by the creditor. ”
Thus we have, the opinion-of writers of the highest authority on the common law, that a tender without acceptance does nof transfer the property from him who makes the tender to him to whom it is made. And Pothier, a French jurist of high repute, tells us the law is the same in France.
We have also seen that if the defendant pleads a tender, and brings the money into court, and the plaintiff takes issue on the tender, and the issue is found for the defendant, whereby the tender is established and the defendant is- discharged — the defendant shall have the money — the plaintiff shall not have it. This is the rule of the common law. Why should there be a different rule for cumbrous articles ?
A tender of cumbrous articles has by the common law one effect different from a tender of money for a debt — it discharges forever the obligation by which the debtor was bound to deliver them.
Perhaps it will be urged that this consequence of a tender of such articles gives to the creditor a property in them.
Upon the most diligent search that I have been able to make, I find no writer on the common law who ever intimates that such an opinion was ever held by any one — nor have P found any case reported, that is decided on such ground.
To say that a tender, which is a mere offer to part with property, when not accepted is a parting with the property, seems to be a confusion of language. The creditor, has no property in the thing tendered to him till the debtor’s property in it ceases. That does not cease by a mere offer not accepted — and it is too late to accept after the offer itself has ceased.
If, as has been shewn, the defendant’s contract to deliver a quantity of leather to the plaintiff gave to the plaintiff no property in the leather in question, and if a tender of it, which was refused, did not necessarily change the property and transfer it from Hadley to Weld, it is not easy to see how the circumstance of the mere discharge of the contract by that tender should necessarily produce such an effect.
The debt may be discharged by the common law without either payment or tender of the thing, due. — As if the debt- or be ready at the time and place to deliver the thing he has promised to give, and no person appears to receive it— the contract or debt is as completely discharged as by aten-der of the thing due. Yet in this case there can be no pre-tence that the creditor has any property in the thing which the debtor had ready but did not tender, unless it be derived from the mere contract itself.
But we have shewn that the contract alone gives to the creditor no property in the articles which are promised to be delivered to him, until the actual or fictitious delivery. — ■ Pothier 151.
Since neither the contract to deliver the articles — nor the actual tender of them is refused — nor the discharge of the contract by such tender, have either of them, by the common law, any tendency to change the property in the articles which were due and tendered — I cannot see how putting them all together should make them produce such an effect.
The principle of the rule that if the plaintiff take issue on the tender when the money is in court, and if the issue be found against him, the defendant shall keep the money— applies with much greater force where issue has been taken by plaintiff on a plea of tender of cumbrous articles, and found against him.
In the first case the money is ready in court — is confessed to have been due and is unpaid — and the obligation is discharged. The defendant takes the money again, and the plaintiff by the common law has no remedy.
In the latter case the article tendered is not present; and to bring it forth and deliver it might be a burden and expense to the defendant, which it would be unreasonable to lay upon him — after the plaintiff’s unreasonable refusal to receive it when tendered according to agreement.
In thé record offered in evidence, in the case at bar, it appears that the leather was tendered to Weld — he refused it —sued Hadley on the contract for it — when Hadley pleaded the tender — Weld took issue on it. Why should not the rule which applies to a traverse of a tender of money apply in this case ? By this rule Hadley should have the leather, and Weld should not.
It is said that the judgment which established the validh ty of the tender of the leather is equivalent to the decree of a court of France establishing the validity of a consignation, and that therefore the tender is to have the same effect here that a consignation has in France.
We answer first — A consignation does not, in France, vest in the creditor the property of the articles tendered, till he accepts them. So says Pothier, n. 537. And this is decisive of the question of property in the leather in dispute, if the law of France is relied on in this case.
Secondly — There is a want of analogy between a consig-nation, under a rule of the court in France, and a tender not made in court of cumbrous articles, according to our common law, in one very material circumstance. Pothier says, n. 536 : “ Consignation is a deposit which the debtor makes by authority of the court of the thing or sum which he owes in the hands of a third person and afterwards, n. 545, he says : <£ The consignee by the consignation obliges himself, tanquam ex quasi contractu, to restore the coins to the creditor, if the consignation be adjudged valid, or to the debt- or who consigned them, if it be declared null.”
From this it appears that consignation is made under a rule of practice of the courts of France — and it is made with an express or implied agreement of the consignor that if the consignation be adjudged valid the consignee may deliver the deposit to the creditor at any time when he will accept it, — else how could Pothier say that “ The consignee binds himself, ex quasi contractu, to restore the coins to the creditor, if the consignation be adjudged valid, or to the debt- or who consigned them, if it be declared null ?”
While the deposit is in the hands of the consignee, if the consignation be valid, he has by the terms of the consignation the consent of the debtor to deliver it to the creditor. The deposit is left with the consignee for that purpose : and so long as the deposit remains in his hands, so long the debt- or continues to offer it to the creditor, and so long the credit- or has time to accept it; and when he does accept and take . it to himself, it is with the consent of the debtor, its owner, and then the property is changed.
But a tender with us at the common law is a very different affair. It is not made under a rule of court directing the article to be deposited under the term of a consignation, in the hands of a third person, who binds himself, Ianquam, ex quasi contractu, to deliver the deposit to the creditor, if the tender be valid, or the debtor if the tender be declared null. No deposit is made, nor can the debtor take any course under the common law to make his tender a matter of record, and shield himself against a suit at a future day, on his obligation. He must wait till he is sued, and then prove the tender as well as he can. The object of the con-signation in France seems to be, to make the debtor’s discharge immediately a matter of record — not to change the property tendered. The debtor who makes a tender of cumbrous articles at the common law is obliged to allow to the creditor sufficient and convenient time and opportunity to examine the article tendered, and ascertain its sufficiency to pay the debt — and if he does not, the tender is null. But he is not obliged to continue the tender longer than that purpose requires — nor does he continue it any longer. He need not part with the possession of the articles. The debtor never says to the creditor, This article which I have tendered to you, and you have refused, I will hold as consignee till you choose to sue me ou the contract, and try the validity of the- tender; and if the tender be adjudged valid, you may then take the article at any time. Yet such must be the language of the debtor if, after the tender, he is in the situation of a French consignee, and bound, Ianquam ex quasi contractu, to deliver the article to the creditor, if the tender be adjudged valid. . He says to the creditor— Take the article now. If refused, -he-offers it no louger. I have looked in vain for any rule of the common law by which the debtor who has made a tender of cumbrous articles not accepted in confidence, as holding them afterwards as bailee or consignee of the creditor.
The cases of Slingerland vs, Morse al.. 8 Johnson, 474, and Coit fy al, vs. Houston, 3 Johnson's Cases 243, are cited by the plaintiff to shew that a tender at common law has the same effect here as a consignation under the French law has in France.
But it is to be observed that the point did not arise, and therefore could not be judicially decided in either of these cases.
In each of those cases the question was, whether the tender made by the defendant was a bar to the plaintiff’s action. There were other previous questions, but that was the main question on which the cases were decided. In Slingerland vs. Morse fy* al. the plaintiff, having distrained for rent the goods in question, and thereby acquired a special property in them, bailed them for safe keeping to the defendants, who obligated themselves to restore the goods to the plaintiff in six days after demand. - On this obligation the suit was founded. The defendants tendered the goods in a particular manner, and the question was, whether the tender was well made, so as to discharge their obligation and bar the action.
It is to be observed that the plaintiff, Slingerland, had a special property in the goods when he bailed them to the defendants — a property which would have enabled hitn to maintain an action of trover or trepass for them, against any man into whose-hands they might have gone, or remained after the tender. And this is the true ground of the remark of the court, that the plaintiff must resort to the speeifiek articles tendered, and that the person in whose possession they were held them as his bailee. It is evident Slinger-land’s property in the goods was not a consequence of the tender, for he had the same property in them before the tender, and even before he bailed them to the defendants, and took their obligation to return the goods to him.
The remark of the court, or judge, that this effect of the tender by the defendants, and a refusal by the creditor, is analogous to a consignation under the French law, seems to have been added merely as a flourish. It certainly made no part of the decision of the question before the court, and might with great propriety have been omitted. Adjudged cases are authorities only on points arising in, and adjudicated for, the decision of those cases. The reporting of obiter opinions of the court on points not arising in the cause, and not litigated, is one of the modern methods of swelling alike the size and the price of law books ; but that is not the only or worst effect — it misleads the student.
In the case of Coil Sf al. vs. Houston, on a promissory note, the defendant pleaded the general issue, with notice that he would give in evidence a written agreement of the parties that the defendant should pay the contents of the note in coals at a stipulated price ; -and on the trial the defendant proved the agreement. He also proved that he had the coals ready, and repeatedly offered them to the plaintiffs ; and the plaintiffs at one time said they would call and take the coals- — at another time they said they would send for the coals, and that the plaintiffs had offered the coals for sale, but the coals remained all the time at the defendant’s coal yard.
It was argued for the defendant, that all this amounted to an accord and satisfaction. A verdict was found for the defendant ■ and on motion to set it aside, the court decided , that the agreement executed amounted to an accord and satisfaction, and would bar the suit on the note ; and that aten-der of performance of the agreement by the defendant would have the same effect to discharge the defendant as actual performance.
The court also decided that there was evidence in the case from which the jury might infer that the plaintiffs did accept the coal, and therefore the accord and satisfaction was we|i pj-ored. On this ground the verdict was supported. Thompson and Kent said, that as a consequence of this principle, the defendant after the tender held the coals as bailee of the plaintiffs.
This was on the ground that the plaintiffs had accepted the coals when offered to them. And there is no doubt that in such ease the property is changed, and the article remaining in the hand of the former owner : he holds it as bailee of the new owner.
The court held, and very correctly, that the tender and acceptance, without any actual removal of the coal, changed the property.
But they did not decide that a tender and refusal would change the property, or any thing like it.
To make this case of Coit 6f at vs. Houston, a precedent for the case of Hadley and Weld, the court ought to be satisfied that a tender and refusal is precisely the feme in effect on the property tendered as a tender and acceptance. Pothier tells us they have not the same effect — but very different.
The case of abandonment of goods by the insured to the insurer does not seem, when examined, to furnish a principle on which to found a property in the plaintiff to the leather in question.
The property which the insurer acquires in the goods abandoned is not the natural consequence of the abandonment. It is a principle of marine law, and grew out of the peculiar stipulations contained formerly in the contract or policy of insurance — which stipulations gave to the one party the right to abandon, and to the other the property in the , goods abandoned.
Marshall, in his treatise on insurance, says — “ It has been “ said, that the practice of abandoning dates its origin from “ the period when the contract of insurance first came into “ use, yet it does not seem to be a right which necessarily re- “ suits from the nature of the contract. That the loss or dam- “ age should be made good by the insurer, who has made him- “ self responsible, is perfectly reasonable, and conformable to “ the spirit of the contract. But it does not necessarily fol- “ low from thence that in case of a disaster he should be “ forced to become the proprietor of the ship, or goods insured, merely because he was a surety for the safe arrival.”
“ It seems more probable that abandonment arose from “ the practice of occasionally introducing into policies partic- “ ular stipulations, that if the thing insured should be spoiled, “ or greatly damaged by any of the perils insured against, it “ should be abandoned to the insurers, who should thereupon “ be obliged to pay the entire sum insured ; and that simply “ making good the damage should not be sufficient to discharge them. Stipulations like this being frequently in- “ traduced into the contract, became at length the foundation “ of general rules, which have been established by positive “law in some countries, and adoped in others as a part of the “general law of insurance.” — Marshall, eh. xiv, page 479.
From this it appears that the right of the insurer to the things insured, after abandonment by the insured, arose from express stipulations in policies of insurance, and by long usage became law among merchants, in this peculiar sort of contract. And policies are made in the full knowledge that this law applies to them. The ease of an insurer acquiring a property in the goods abandoned after a loss, notwithstanding his refusal at first to accept the abandonment, is not parallel to the case of a creditor refusing the goods due and tendered to him for a debt. The insured is bound to abandon immediately on receiving information of the loss. The insurer may know that the loss has happened, but he may not know whether the insured has a right to abandon and compel the insurer to pay for the loss. There may have been a deviation from the voyage insured, which would discharge the insurer and take away the right to abandon. Of this both parties may be ignorant. And it may be difficult for the insurer to obtain any knowledge of it until long after the abandonment. It would be unreasonable to compel the insurer to-accept the abandonment and pay the loss, or forfeit the claim, which by the terms of insurance he might have to the goods abandoned, before he has had time to learn the facts on which his liability for the loss, and his right to the goods abandoned, depend. His refusal, therefore, at such a time, to accept the abandonment, ought not to prejudice his right acquired by the terms of the insurance.
If any deviation from the voyage insured, or other cause, has rendered the insurance void, I presume it will not be contended that the abandonment by the insured divests his property in the goods, and gives them to the insurer.
In the case of a tender of a thing due to a creditor, he knows precisely what is due to him, and time sufficient is allowed to him to examine the thing tendered, and be informed of its quantity and value, or sufficiency to pay the debt. He knows also the right of the debtor to make the tender, and be discharged. It is, therefore, bat reasonable that the creditor should at the time of the tender accept or refuse the thing tendered, and be forever bound by that acceptance or refusal.
In the contract of insurance, both parties agree that when the property insured is rightfully abandoned, it shall from that moment be the property of the insurer, and be at his charge and expense.
But there is no agreement between the debtor and credit- or that the debtor’s property in the goods lawfully tendered and refused, shall from that moment cease, and be abandoned, and that the creditor will, from that moment, be the owner of them, and they shall be kept at his charge and expense.
When such a contract is made, it will no doubt have a legal effect according to the terms of it. And when such stipulations become frequent, and in general use, they may, as the stipulations of policies of insurance have, become the foundations of general rules applicable to them, and have their effect, though not expressly inserted in the written contract. ■■
There is no principle of equity in the case, to give the plaintiff a property in the Leather, There is no equity in his claim.
The leather was tendered to him according to the contract which he had made with the defendant. It was tendered at a proper time and, place. The plaintiff had time and opportunity to examine the leather himself, or by any agent whom he chose to employ for that purpose-^but he refused it. Having refused it tinder all these circumstances, (and these circumstances did exist, or the tender could not have been adjudged valid;) having compelled Hadley to establish the validity of the tender, and defend himself, at enormous expense, against the attempt of the plaintiff to turn the contract for leather into a contract for money— what principle of equity is that, which will allow the plaintiff, after all these proceedings, and more than four years after the tender, to set up for the first time a claim of property in the leather ?
A quantity of leather was due to him. The debtor did all he could to pay it. He offered the pay ; but the credit- or would not have it. He chose rather to let the defendant be discharged by law, without receiving his pay. In all this he acted voluntarily and wilfully. Under such circumstances there is no more equity in his claim than there would be if he had accepted the leather when tendered, afterwards given it to the defendant, and then brought this action of trover for it.
He might, if he pleased, have given the debtor a release of the debt by writing, under his hand and seal; and equity might as well give him the leather afterwards, as when he has voluntarily and wilfully refused it when lawfully tendered to him, and thereby permitted the debt to be released by the operation of law, without payment.
The debtor, Hadley, did all that he was under any legal or moral obligation to do; all that law,.equity or reason required him to. He did all but compel Weld to accept the leath-erj an¿ that he could not do. If after all this Weld has lost the debt, and has no property in the leather, it is his own folly. He has lost nothing but what he wilfully refused to have when it was his right and duty to accept it.
We shall consider,
1st. The effect of a legal, valid tender on the contract between the parties.
2d. The effect of a legal and valid tender on the right of property, or ownership in the things tendered.
1st. The effect of a tender on the contract.
It is laid down in 6 G. Bac. 456, “ that a tender by one “ party of paying a debt, or performing a duty, and a refusal “ by the other to accept thereof, do in some cases amount to “a payment of the debt, or a performance of the duty — but “ that the discharge or performance in such cases are acciden- “ tal, and not necessary consequences of the tender and re- “ fusal — the debt or duty being discharged; because the “ cases seem so peculiarly circumstanced that there was not, 11 after the tender and refusal, any remedy to enforce the pay- “ ment of the debts or the performance of the duties.”
This effect of a tender and refusal will, it is apprehended, be found, on an attentive perusal of the cases and authorities cited in illustration of the principle, to apply to all cases of a tender correctly made, of cumbersome and perishable articles.
But in this respect the authorities all shew a material and manifest distinction betweeen the effect of a tender of money, and a tender of specifick articles.
In the former case, the party who makes the tender, is bound at all times to keep it good ; that is, to have the money at all times ready for the party to whom the tender is made. The debt and duty is not in this case discharged by the mere acts of tender and refusal. A demand of the money at any time after, and a neglect or refusal to pay, destroys its whole effect; and even a plea of tender, without an actual proferí in curia of the money tendered, is attended with the, same qonsequeac.es-, and tHe plaintiff--.may sign judgment. — 6 G. Bac. — 8ugden.-—l Strange 638. — 1 S'aund. 33, n. 2.
But a tender of cumbersome and perishable articles is otherwise. When made conformable to law and the terms and conditions of the contract, it is of itself, without any further act or care of the party, a discharge forever of all recovery oil the contract itself. 2 Swift Sys, 404 — 3 John. Gas, 243. — 8 John. Rep, 474.
The party who makes such tender is: not bound to keep it good, as in the case of money: — nor is he obliged, when compelled to plead it in bar to an action on the contract, to plead it as in the case of money with a proferí in curia of the articles tendered. 6 G. Bac., Tender.
The distinction between these cases seems principally to consist in a direct and immediate — or only in a future and conditional, discharge of the contract.
In the case of money, acts subsequent to the act of tender are necessary on the part of the person making it. In the case of specifick articles, the tender itself, correctly made, without any further act, is the discharge.
But, the final effect and operation is or may be in both cases the same — it may in both cases ultimately become equivalent to payment or performance — it may in both cases, when at first correctly made, arid in the case of money kept good and properly pleaded, amount to a final discharge of all damages for a breach, and a. final bar to all remedies for a non-perforpaanee of the contract itself.
2d. The effect of a tender on the right of property or ownership in the thing tendered.
It is a very natural inference, from the doctrine “ that a tender and refusal discharges the contract, and is equivalent to payment” — that in all cases lohen that effect takes place, the right of property in the money or thing tendered is transferred to the party to whom the tender is made, and whose debt is thus discharged.
It is repugnant to any principle of right and justice to say that a man shall pay his debt mid discharge his contract, mid still retain his right of ownership in the thing that paid it. If such be the law, it is obviously the result mf some artificial system, in opposition to natural right, and dependant on the authority, not of reason,, bat of names and decisions alone for support.
It is, therefore, incumbent on the advocates of such a doctrine to make out a strong.and clear case from precedents and authorities, to counterbalance a doctrine so founded in natural right, and justify a departure from so plain and obvious a rule.
But as the decision of this point is in effect the decision of this cause, and as there is at least some apparent if not real conflict in the authorities relating to it, we shall consider—
1st. Its operation on the money tendered.
2d. Its operation on the specifick articles tendered.
It has already beepi observed that in the case of a tender of money, as the debt or duty is not discharged by the mere act of tender, it must always be pleaded with a profertin curia, and the money actually brought into court, or its whole effect is destroyed and the plaintiff may sign judgment. 6 G. Mac. 465. — 1 Strange 638. — 8 Mass. Rep. 261.
This doctrine is well settled. It is only necessary, therefore. to enquire what disposition the law makes of the money after it is thus placed under the controul and custody of the court.
The general law is, that “ if the money or other thing which has been tendered be upon pleading the tender brought into court, the plaintiff is entitled thereto, although he should be afterwards nonsuited, or there should be a verdict against him.” 6 G. Mac. 465. — 2 Bos, Pul. 392. — 2 Term Rep. 645.-8 Mass. Rep. 261.
This doctrine is founded on the plain and obvious ground, that the defendant by the tender has admitted the debt to the extent of the sum tendered.
But it is said by lord Coke, in his Commentaries, 207, a., “ that if the defendant plead the tender and refusal, and pay the money into court, and the plaintiff will not then receive it, but takes issue on the tender, and the same be found against him, he hath lost the money forever.”
The authority of lord Coke is unquestionably great; but the mere dictum of any man, however venerable among the sages of the law, when, in the language of Mr. Justice Bullet, “ it is unsupported by authority and contradicted by reason,” will not, we trust, form the rule of decision in this court. In such case it is allowable to say. ‘ Amicus Platoni sed am-icus veritati.’
When the principles on which any doctrine of the law is supposed to be grounded, are found on examination to be not only not clearly right, but manifestly wrong, it would be indecorous to suppose such doctrine to receive any countenance whatever from the court.
Take then the case under consideration, unembarrassed by authorities either way, and what does it present ?
The law has defined with considerable accuracy the circumstances necessary to constitute a legal and valid tender.
These circumstances are a combination of time, place, quantity, quality, and manner, not unfrequently presenting a question of no inconsiderable difficulty to determine whether the tender is conformable to law or not.
Is there any thing in all this that calls for the application of lord Coke's vindictive rule, that if the plaintiff should happen to doubt upon any or all the circumstances necessary to make the tender legal and valid, he must take the opinion of a jury at the peril of his debt ?
But however reasonable or plausible it might appear, to punish a creditor by the loss of his debt, who refused to receive a tender of money, as that is an article of a legal and ascertained value, all the alleviations of the hardship and absurdity of the rule will at once vanish when we attempt to apply it to a tender of spedfick articles.
lu this case it does not unfrequently happen that no one thing is certain — the time, the place, the quantity, the quality, the manner and value, are all circumstances open to dispute, and some of them not unfrequently of difficult determination.
To say) then, that the plaintiff under such circumstances shall be obliged to take the opinion of a jury of his country at the peril of his debt, is to lay down a rule uncalled for by the necessity of the case, and unsupported by any reciprocal principle of reason or justice. At the peril of the costs, we agree he must — but there his peril ends.
If, then, this question were res integra, the rule of decision would be obvious as light. In natural justice and equity it is manifestly clear that the thing which pays the debt and discharges the contract should belong to him whose debt is paid and whose contract is discharged; and the decided cases, we apprehend, so far as they are consistent with themselves, when rightly understood not only furnish no objection to, but strongly corroborate, this position.
The authorities placed in the margin, of lord Coke’s Commentaries, in support of the general doctrine he there advances, (the concluding part only of which is quoted above) are Roll. Abr. Siderfin, the Year Books in the time of Edward the 3d and 4th, and Henry the 6th, and Henry Peyloe’s ease, the fHh Yol. of his otmi Reports. These references we have had no means of particularly examining, except the last, which essentially fails in supporting that portion of the doctrine of the text which we have cited above. The resolution in Peyloe’s case was expressly founded on the decisions in the Year Book in the time of Henry 6th, cited above, and was decided on the ground that the defeazance on which the tender was made was merely collateral to the obligation, and not parcel of it — in which case, according to lord Coke himself,(4) it is not necessary to plead the tender with & profert in curia, and actually bring the money into court.
As to the other references, Rolle is cited on both sides of the question, and Dyer also, in opposition to the doctrine of the text. *
But the same doctrine is cited from lord Coke, in 6 G, Bac. 466. a., (Bacon cites Salk. 597, which does not support the doctrine) and the reason of the decision is there given. It is always a fortunate circumstance, when erroneous principles are attempted to be supported by the mere weight and authority of names, to find the reasons of the decisions recorded with the decisions themselves. The poison is then accompanied with its appropriate antidote. The reason given in Bacon is “that it is at the plaintiff’s peril to take an issue by which his refusal has become matter of record.” — - 6 G. Bac. 466.
Now it will be found, we apprehend, on an attentive examination of the precedents of pleas and replications in cases of tender, that the pldintif’s refusal is as much a matter of record in all other cases when an issue in fact or law is joined, as when he takes issue on the tender itself. The refusal is in no case in issue — it is not by itself an issuable fact — - and were an issue joined on it alone, and a verdict found either way, no judgment could be rendered on it. The tender itself seems to imply a refusal; for if it did not, it would be no longer a tender, but payment. The plea, it is true, states a tender and refusal, but the replication in no ease traverses the refusal. It is only admitted because not traversed, and so are all the precedents we have examined.
Besides, there are cases where the tender is good and effectual, even to the discharge of the contract, when there never was any thing but a constructive refusal. Such are all the cases of a tender of speeifick articles at a time and place certain, where the creditor, from any Gause whatever, does not attend.
The tender at the time and place is as complete a discharge of the contract, as if the creditor were personally present at the time and place, and actually re fused (5.)
The discharge of the debtor in this, as in all other cases, goes on the broad ground that he has done all incumbent on him to fulfil his contract; and in such case the rule of law is that he shall suffer no injury by the default or negligence of the other party. It is, therefore, wisely provided that an offer to perform the very act he had by his contract stipulated to perform, is equivalent to a performance. He shall be as well as if he had actually performed, but not better. He shall be as well; because his contract is discharged by a tender of the articles by which he contracted to discharge it. But he shall never be better, by discharging his contract and still retaining his right of property in the articles that discharged it.
The reason, then, on which the doctrine cited from lord Coke is supposed to depend (and it is difficult to conceive of any other) will be found on examination to apply to all other cases where a tender is pleaded and áh issue joined, as well as where the issue is taken on the tender itself.
When, for instance, after a plea of tender, the replication states a writ sued out previous to the tender — or a demand subsequent — or when the plaintiff demurs to the plea, for any cause whatever, the plaintiff’s refusal is as much admitted on the record as when he takes an issue on the tender itself.
But in ail these cases it is well settled, and by modern authorities, that the plaintiff, notwithstanding the issues are found against him, shall nevertheless have the money. Le Grew vs. Cooke, 1 Bos. & Pul. 332. — Cox vs. Robinson, 2 Strange 1027. — Claflin vs. Haives, 8 Mass. Rep, 261.— Elliott vs. Callow, 1 Salic. 597. — Sicker vs. Kitchurman, Barnes 284,-1 Bos. & Pul. 392. — 1 Term Rep. 464.-2 Term Rep. 645.
The truth seems to be, that the doctrine, as laid down by lord Coke, however it may have formerly been in England, is not law in that country at the present day.
This is plainly to be inferred from the very respectable authority of Mr. Sergeant Williams¡ in his second note to the case of Sinks vs. Trippet(6.) I|e there states “ that an idea seemed owce to prevail that if the plaintiff did not admit the tender, he could not take the money out of court, — and then cites the strong case of Le Grew vs. Cooke, to shew that this notion is not founded in law.
The case of Le Grew vs. Cooke was an action of assump-sit. The defendant pleaded as to all but 30/. non assumpsit, and gs to that sum a tender, and brought the money into court. The plaintiff replied an original sued out on a particular day, and that the money was not tendered before that day — but took the money out of court: a rule having been obtained, calling on the plaintiff to shew cause why the replication to the plea of tender should not be struck out, on the ground of the plaintiff ’s having admitted the tender by taking the money out of court. After argument, Buller, J. who delivered the opinion of the court, said—
“ This is a point of practice which I had thought as clearly settled as any point ever was, and I am much mistaken if it has not more than once been before the court of King’s Bench.” <! It is perfectly certain that ivhatever may become of this action, the plaintiff will be entitled to the money tendered,,” “ It being once admitted that the plaintiff will be entitled to the money tendered at all eveyits, this application must fall to the ground. The reason given in Barnes against allowing the plaintiff to take the money out of court — namely, that the replication to the tender is a refusal to accept the money, is absurd. That case is, therefore, felo dese, and the present application rests upon no other foundation than the opinion of a writer, who has indeed in general reported the practice of the court with accuracy, but whose assertion in this case is unsupported by authority and contradicted by reason.”
Upon the whole, the conclusion seems warranted by sound construction of the principles and authorities cited and examined, that when a tender of money is at first properly made — kept good — pleaded, and the money brought into court — it is a discharge of all damages on the contract, and that in all such cases, whatever may become of the particular action, the plaintiff is entitled to the money tendered.
2d. It only, therefore, remains to apply these principles to the case of a tender of speeifick articles.
The general principle, as settled by all the authorities in the case of a tender on a contract for the payment of money, is that the tender is no bar to an action on the contract, unless when pleaded the money itself is actually paid into court. The action is then in effect discharged, and as a consequence thereof the plaintiff is entitled to the money. This principle runs through all the cases that are consistent with themselves, and it hence results that the debtor’s discharge from his contract, and the creditor’s right to the money, are correlative to each other, and that the one never takes place without the other.
The doctrine for which we contend in its application to a tender of speeifick articles, is founded on the same reciprocal principle. It is, as has already been observed, that a tender of cumbersome and perishable articles, "when made conformable to law and the terms and conditions of the contract, is of itself, without any further act of the party, a discharge forever from the contract — that the property in the thing tern dered vests by such tender in the creditor — that the debtor may then, if he so choose, abandon the articles tendered, arid if they are in consequence injured or destroyed, the loss falls not on him.
But if from any cause whatever he elects not to abandon, but retains the possession of the articles tendered, the relation of the parties then changes, and instead of creditor and debtor on the contract, becomes that of bailor and bailee of the articles tendered : That the creditor is then bound to take his remedy on the property tendered, and into whosoever’s possession this property may come, whether into that of the former debtor, or any other person, this person holds it for the creditor, and at his risk, under the ordinary responsibility of a bailer by deposit — and is entitled to an equitable and reasonable compensation for his trouble and expense in its care and preservation. — 3 John. R. 474. —3 John. Gas. 243.-2 Swift Syst. 404.
Such is the doctrine for which we contend, in perfect analogy with the law in relation to a tender of money— founded in a perfect reciprocity of rights and duties, and doing equal and exact justice to both parties.
But we do not rest this doctrine merely on its own intrin-sick and perfect equity — on its fairness to all parties, and its injury to none — although, in the language of a learned judge in one of our sister states, <! when principles are strong, it is sufficient that there have been no decisions to the contrary.” We are happy to have it in our power to call in the aid of authority to the assistance of reason — of authority, too, not adapted to other times or other countries, but. the determinations of enlightened judicial tribunals in our own times and in our own country.
The question under consideration, so far as we have been able to ascertain, has not been the subject of judicial examination in any of the states except Connecticut and ]few-York.
In these states it has been judicially examined, and we apprehend settled in perfect coincidence with the principles already mentioned.
The case of Nicholas vs. Whiting was decided in the supreme court of Connecticut, and is reported in 1. Roof 448, and also by Swift, in his System of the Laws of Connecticut, 1 Vol. 404. . *.■
. It was in this case decided, “ that when the contract is to pay articles of a certain amount, of a general description, as articles of shop work, &c. it is peccssary, in the pile a of tender, to point out, and of course in the tender to set out, the particulars articles, whereby they can be known and distinguished from others — for if the tender be good, it is a bar to an action on the contract, and the articles vest in the person to whom tendered, and they ought to be identified, that he may know what articles belong to him.” '
The same principle seems to have been very clearly admitted by the supreme court of New- York, in their reasoning in the case of Coit & al. vs. Hauslon.(7) in the decision of the case of Neioton vs. Galbraith (8.)
But ih the more recent case of Slingerland vs. Morse & al., before cited, (9) the supreme court of New-Nork seem to have left no room to doubt what their opinion is upon the question under consideration. They directly say, “that a tender of cumbersome specifick articles correctly made, is a complete bar to a suit on the contract,” and that in such case “ the creditor must resort to the specifick articles tendered, and that the person in whose possession they are holds them as his bailer and at his risk.”
This opinion goes the whole length of the present case ; and from the deservedly high reputation of the court that gave it, and the very cautious manner in which its decisions are uniformly given and reported, we consider it entitled to very great respect and consideration.
The law of consignation, referred to by the court in this case, in illustration of the effect of a tender of specifick articles, is thus stated by Pothier, in his Treatise on Contracts— “the greatest portion of 'which admirable treatise,” in the language of the celebrated Sir William, Jones, “ is law at Westminster as well as Orleans.”
“ The effect of the consignation,” says Pothier, in No. 545, “ is, that if it be judged valid, the debtor is holden to “ have been discharged by it — and although, suhtilitate juris, “ he remains proprietor of the coins consigned, till they be “ taken by the creditor, they cease'to be at his risk, and lie “at the creditor’s — who, from being the creditor of a sum “ of money, as he was before, is now become creditor of “ those coins, tanquam cerlorum corporum, and he is a cred- “ itor no longer of his debtor, who has been fully discharged “ by the consignation, but he is a creditor of the consignee, “ who by the consignation obliges himself, lanquam ex quasi “ contractu, to restore the coins to the creditor, if the con- “ signation be judged valid, or to the debtor who consigned “ them, if it be declared null,”
Such is the effect of a consignation, as laid down by Po--thier. Its analogy to the effect of a tender, as stated above, is suificiently obvious.
The doctrine of abandonment in insurance cases, as stated by Marshall, in his Treatise on Insurances, furnishes another illustration of the principle for which we contend, and an undoubted authority to shew that property may and does sometimes pass by operation of law, not only without, but even against the consent of the party in whom it vests, even after his express refusal.
It is said in his treatise to be well settled, “ that by the “abandonment of the ship the insurer becomes the legal “ owner — is liable for all her outgoings, and is entitled to “all her future earnings, and this whether the abandonment “ be accepted at the time it is made, or refused, if made in “ due time and for sufficient cause” (10.) And in the case of the United Insurance Company vs. Scott, chief justice Kent said — “ the very essence of abandonment consists in a cession, and amounts to a complete transfer of the property” (11.)
From all this it is manifest that the effect and operation of a tender of specifick articles, as stated above, is not a sol-r ’ ’ itary or anomalous case in the law. It is just and equitable in itself; accords with the general principles of other cases, and is supported not only by sound reason but by respectable authority.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
