Weld v. Eliot Five Cents Savings Bank , 158 Mass. 339 ( 1893 )

Allen, J.

The defences set up in the defendant’s answer were, first, a general denial, and, secondly, a tender. The plea of tender was bad, because not accompanied by a proferí in curia. Carley v. Vance, 17 Mass. 389, 392. Storer v. McGaw, 11 Allen, 527. Brickett v. Wallace, 98 Mass. 528. This, however, is now immaterial. The facts being agreed, defects in pleading are waived, and the case is to be determined on its merits.

It is agreed that on April 26,1892, the sum due on the bankbook was $1,372.62. The plaintiff on that date was entitled to demand and receive that sum. The omission to specify the month and day of the month in the date of the depositor’s order to make payment to Mr. Minot did not invalidate that order, and the defendant was not thereby excused from the duty of paying the amount to Mr. Rackemann upon his demand.

Fifteen days afterwards, the defendant offered to pay that sum to Mr. Rackemann, but for some reason the parties were both standing upon their extreme rights, and he then refused to take the money. The tender was bad, because it did not include the interest for the fifteen days.

The defendant now contends that the plaintiff was bound to show that by the rules or by-laws of the defendant he was entitled to call for payment of the amount of the deposit without prior notice. But we think, on the contrary, that it was for the defendant to show, if it could, that he was not so entitled. If the defendant had any rule entitling it to prior notice, it is not made known to us, and there is no legal presumption that it had.

So far as is now made to appear, the demand on April 26,1892-was a good demand; the subsequent tender was insufficient; and, according to the agreement of the parties, judgment must, be entered for $1,372.62, with interest from that date at the rate of six per cent, and costs. Judgment aeeordingly.