Foster v. Drew

The opinion of the court was delivered by

This case was not argued. The plaintiff’s brief presents two points — one, that the first tender was waived ; the other, that the second tender was conditional. We find it necessary to decide only the question of the validity of the second tender. What ■ was said in making the first is still important, because jt is in the light afforded thereby, and by the other circumstances reported that we are enabled to see what was meant and understood by the language used in making the last tender. The offer of $170. was explained'by the defendants as intended to cover the plaintiff’s claim hut to leave the defendants’ store account of $41.78 a subsisting demand against the plaintiff. On the other hand the offer of $130. was intended as a tender of the balance due the plaintiff, and would not leave this store account subsisting. After what had occurred, it was necessary for the defendant to explain this.

*54We think the language used in making the second tender could not, under the circumstances, be fairly understood as doing more than giving this necessary explanation and stating the defendants’ claim. The language interpreted, as it was used, with relation to the previous transactions, does not affix a condition to the acceptance of the money. “ The defendant supposed and told the plaintiff that if the plaintiff took the $130. it closed the whole business, and if he took the $170. it settled the oat business and left the account standing.” By thus connecting the two propositions together antithetically the defendant explained his claim, and the purpose of his tender, and what each tender was intended to cover, but he did not inform the plaintiff that if he received the money he must receive it as closing matters between them. Had he in substance informed him that if he accepted the money he must accept it in full, it would have been a conditional offer and invalid as a tender because its acceptance would have amounted to accord and satisfaction. When one makes a tender in good faith he supposes it is enough to close the whole business, if accepted, and he may tell the other party that it will. This differs from an offer upon condition that it shall be received only as closing the matter. We think the last offer was valid as a tender. This case, as we feel compelled to interpret the report, presents the question which was decided in Preston v. Grant, 34 Vt. 201.

The judgment of the county court which was for the defendants is affirmed.