Adams v. Greig , 126 Mich. 582 ( 1901 )

Grant, J,

(after stating the facts). It is only necessary to determine one of the questions raised, as that is fatal to the defense. Under the terms of the note, defendant and her husband could have relieved themselves from further liability for interest by having the amount then due at the Grand Rapids National Bank on the day the note became due, that being the place designated for payment. Complainant was then under obligation to present the note there and receive payment of defendant. She was, however, under no obligation to keep the note and mortgage there ready for payment at any time after wards when the defendant might wish to pay. When the last payment ($150.23) was made, the note was about two years past due. She then had an opportunity to pay it all. That opportunity continued for a year and three months longer, while complainant was still living in Grand Rapids. She had an opportunity to pay in 1899, but refused. Yet this decree relieves her from the payment of interest, not only when defendant had ample opportunity to pay, but even after demand and refusal, and also when, by her own testimony, she had loaned the money and was receiving interest upon it. Clearly, she was not relieved from paying interest before she was ready and willing to pay both principal and interest, and was prevented from so doing by circumstances which would be the equivalent of a tender; neither could she be relieved from paying interest after demand and refusal. Ferguson v. Popp, 42 Mich. 115 (3 N. W. 287).

Some time after 1888, but the precise time does not appear, defendant requested a Mr. Beckwith, who was the agent for the complainant’s son in collecting rents in Grand Rapids, to write to Mr. Adams for her. What he wrote does not appear. Some time in 1890 one Mr. Johnston, at the request of defendant’s husband, wrote complainant’s son, stating that he was desirous to pay the amount of the mortgage, and wanted the note and mortgage sent on, with the discharge. In 1894, at the request of defendant, Bundy & Travis, attorneys at law, wrote to Mr. Adams, stating that Mr. Greig had deeded to his wife, as the result of a decree for alimony, a certain portion of the property, and that Mr. Greig had assumed the mortgage, and requested her either to release the mortgage upon the land deeded to her, or put it in process of foreclosure, so that the part of the property which remained in Greig could be sold first, and the mortgage paid. No reply was received to these letters, and Mr. Adams testified that he did not receive them. All these parties knew the address of Mr. Adams; and the letters were not returned to them.

These facts were not the equivalent of a tender, and did not relieve Mr. Greig or the defendant from paying interest. Where tender is claimed, proof that the amount due was tendered, and clear refusal to receive the amount,, must be made. Engle v. Hall, 45 Mich. 57 (7 N. W. 239). Defendant’s counsel cite no authorities to sustain, their contention, unless it be Pillow v. Brown, 26 Ark. 240, where it was held that a state of war suspended interest between the subjects of the belligerent powers.

Defendant cites Gill v. Bradley, 21 Minn. 15, as holding that the debtor is not bound to go to another State to make tender. In that case plaintiff was the assignee of a land contract, and brought suit to enforce specific performance after having tendered the full amount due, including interest. The defense was that plaintiff was guilty of laches in waiting 11 years before proceeding to enforce-the contract. The defendant resided in North Carolina. The case does not hold that a party may relieve himself from the payment of interest from the fact that the payee is a nonresident. The other cases cited are similar in character.

Where the maker of a promissory note seeks to relieve himself from the payment of interest by circumstances, the equivalent of a tender, he must show that he has made reasonable efforts to make the tender, and to notify the-payee of his willingness and offer to pay. The residence of complainant and her agent was known. Defendant could easily have ascertained it, and could readily have caused the tender to be made.

Decree reversed, and decree entered in this court for principal and interest, with the costs of both courts.

The other Justices concurred.