Wentworth v. Lord , 39 Me. 71 ( 1854 )

Cutting, J.

— The statute of 1835, c. 165, § 6, reenacted by R. S., c. 115, § 22, provided, that “in any action founded on judgment or contract, the defendant may offer, and consent in writing to be defaulted, and that judgment may be entered against him, for a specified sum as damages; and the sum shall be entered of record, and the time when the offer was made; and if the plaintiff shall proceed to trial, and recover no greater sum for his,debt or damage, up to the time when the offer was made, the defendant shall recover his costs of the plaintiff, from the time of such offer up to the time of trial; and such costs shall be set off against the sum so offered, and judgment shall be rendered and execution issued for the balance for either party, which way soever the same may be.”

The Court, in giving a construction to this Act, in Jackson v. Hampden, 20 Maine, 37, say: — “It is insisted, that the offer to be defaulted is an admission of the contract declared on. The statute c. 165, § 6, by virtue of which the offer was made, does not appear to have been designed to afford the plaintiff any advantages, beyond what he might derive from the offer itself. The reasons upon which the rule was established, that a tender of a part admits the contract stated in the declaration, do not apply to an offer to allow the plaintiff to take judgment for a certain sum. Such offer may be made to avoid the risk of costs, where there may be a chance of the recovery of nominal damages, or a small amount, where the defendant thinks there is nothing due. The act determines the effect, that the offer is to have upon the rights of the parties; and to decide, that it admitted the contract, would be to change that effect and to defeat in a great degree the design of the Act.”

Again, in Fogg v. Hill, 21 Maine, 529, the Court use the following language: — “By the offer to bo defaulted, the cause of action must bo regarded as confessed. Such offer, under the statute, is equivalent in its effect, in this particular, to bringing money into Court upon the common rule, which has ever been considered as leaving nothing in controversy but the quantum of the debt or damage which the plaintiff is entitled to recover. The evidence therefore, tending to prove a tenancy as lessee under the plaintiff, was, after such offer, superfluous; and the arguments of counsel thereupon are in the same predicament.”

These two decisions, (a little conflicting, perhaps,) were made prior to August 2, 1847, when the Legislature gave their construction by an amendment of the Act, adopting and extending the principles of the first decision. By § 1, of that amendment, the original Act was altered so as to set off the defendant’s against the plaintiff’s costs, instead of “ against the sum so offered.” And by the second section, “ an offer to be defaulted as provided in said Act, if the same be not accepted by the plaintiffs, shall in no case be hold as an admission of the cause of action, or of any promise or indebtedness on the part of the defendant; nor shall such offer be used as evidence before the jury on trial of the action.”

Under the former Act, when the defendant made an offer and prevailed, judgment must notwithstanding be rendered against him for the amount of the offer, less his costs; for such is the language of that Act. But by the Act of 1847, ■costs were to be set off against costs only, and judgment rendered and execution issued for the balance, and thus the offer now constitutes, by statute, no part of the judgment, when not accepted. If such was not the design of the Legislature, then the 1st § of the Act of 1847 is wholly superfluous.' But it became necessary to make that alteration in ‘order to introduce the 2d §, which provides that the offer, if ■not accepted, shall in no case be held as an admission of the cause of action, or of any promise or indebtedness on the part of the defendant.

When is the offer to be accepted ? Certainly, before the ■cause “ shall proceed to trial.” The verdict establishes the rights of the parties, unless the plaintiff shall be entitled to judgment, veredicto non obstante; and if entitled, how, and upon what evidence ? Surely, not without some proof of a promise or indebtedness, and .the statute is imperative that the unaccepted offer shall not be received as such. And not received by whom ?' It would be absurd to say it might be received by the Court, and not by the jury. If by either, the latter would seem to be the most proper tribunal; but they, by a subsequent and independent clause, are expressly prohibited from receiving it, and to say that the preceding sentence was applicable only to the jury, would render the last and concluding sentence surplusage.

Any other construction would place the parties litigating in unequal positions; no offer, by way of compromise or of terminating a doubtful suit, could be safely made, for the plaintiff might by verdict recover the whole, and is certain by judgment to recover the amount offered, when perhaps the verdict may be against him, and being thus sure of a ■certain amount, he proceeds with renewed hopes and expectations of recovering the whole, regardless of the minor ■.question, as to which party shall pay or receive costs.

The question as to the withdrawal of the offer becomes immaterial. Judgment on the verdict.

Rice and Hathaway, J. J., concurred. — Shepley, C. J., dissented.