Park v. Wiley , 67 Ala. 310 ( 1880 )

BBICKELL, C. J.

— As the case is now presented, there is but a single question for decision; the liability of the appellee for interest on the note given by him for the purchase-money of the lands. It is claimed that he is absolved from liability, because at the maturity of the note he made a tender of the amount due to the payee of the note, the ancestor of appellants, and that the money was in fact received, and returned to him under an agreement that he should retain it without interest, until it was ascertained whether there was an incumbrance on the premises, which must be removed before a good title could be made to the appellee. In this State, interest attaches to a debt, as an incident from the moment it is due, unless there is some agreement to the contrary.— Whitworth v. Hart, 22 Ala. 343; Cheek v. Waldrum, 25 Ala. 152; Hollingsworth v. Hammond, 30 Ala. 668. A tender of the amount due at the maturity of a debt, or a tender subsequently of the amount including interest, will absolve the debtor from future liability for the payment of interest. — Rudolph v. Wagner, 36 Ala. 698. And an agreement waiving the future payment of interest, if not merely gratuitous, will relieve from liability. — Kyp v. Bostick, 18 Ala. 589; Cox v. M. & Y. R. R. Co. 37 Ala. 320.

A tender is an affirmative plea, whether interposed at law or in equity, the burthen of proving which, rests on the party pleading it. And the making of an agreement by the creditor, relieving the debtor from the payment of interest, a legal incident of the contract, is affirmative matter to be proved. The endorsement on the bond for title, shows no more than that the vendor was unable on the day of its date (a day subsequent to the maturity of the note for the payment of .the purchase-money,) to make title, and that the time for making title was extended to the 12th September following. It is its own best expositor of the agreement between the parties, and bears no indication of a purpose on the part of vendor or vendee, to waive the payment of interest. If a vendee of lands offer to pay the purchase-money at the time appointed, and the vendor is then unable to make title, and another day is appointed for the making of title, it is incumbent on the vendee to pay, or tender on that day, if he would relieve himself from interest. —Bass v. Gilliland, 5 Ala. 761. Or, if the vendor should decline to receive the money, because of his inability to make title, it would be inequitable to compel the vendee to pay interest, if he kept the tender open, and continued in readiness to pay. In the present case, it is apparent the tender was not kept open, nor did the vendee continue in readiness to pay. A part of the money had been borrowed, and it was immediately returned to the tender, the vendee deriving benefit from its use. When a tender is relied upon, the duty resting on the party making it, is to keep the money safely, not the identical coin, or bank notes, but money of like kind, so that he may produce it when required. The tender is then kept open, ready for the acceptance of the other party, whenever he manifests a willingness to receive the money. — 7 Wait’s Actions & Def. 592. The facts shown in the record, are insufficient to show an agreement by which the appellee was relieved from the payment of interest, and they are insufficient to prove the plea of tender. The plea could not be supported in any event, because it was unaccompanied by the payment of the money into court. — Daughdrill v. Sweeny, 41 Ala. 310; McGuire v. VanPelt, 55 Ala. 344.

Reversed and remanded.