Harris v. Mulock ( 1853 )

Morris, Justice.

From the facts proved by Mr. Evans, I must determine whether a tender was made by Mr. Mulock.

In this case the money placed upon the table was not current coin of the state, and would not be a tender, had Mr. Harris objected to it for that reason ; therefore to constitute that money a tender, Mr. Mulock must have given Mr. Harris time sufficient to examine the money to enable him to ascertain whether the money was of such description he would be willing to receive, instead of current coin, in satifaction of his demand.

There being no place appointed either in the bond or mortgage at which the principal or interest was to be paid, the debtor was bound to seek the creditor to make his payments, not the creditor to seek the debtor to receive payment; it is not a case where a demand was necessary before suit brought: a suit could have been instituted and sustained without previous demand of payment; therefore Mr. Harris was under no legal obligation to be in Mr. Mulock’s office, for the purpose of receiving what was due to him, as would have justified his remaining there to .get the money, after he should be ordered out; neither was he so bound to receive his money at that place, as to compel him to remain and receive insult until he could get his money. Mr. Harris’s call at the office of Mr. Mulock was an act of accommodation to Mr. Mulock, and he was not bound to remain there one moment beyond the period Mr. Mulock should commence to treat him discourteously.

The fact that Mr. Harris called at the office of Mr. Mulock, instead of instituting a suit, or compelling Mr. Mulock to seek him out, shows he was actuated from a spirit of accommodation ; and the fact that Mr. Harris commenced to count packages of bills composed of ones, twos, tens, and twenties, amounting to $2,100, for the purpose of taking out of them $2,080 and some cents, or $2,079 and some cents, shows an entire absence of captiousness on his part, for had he been captiously inclined, all he would have been obliged to say was, “ I refuse bills.”

Mr. Mulock used the insulting words to Mr. Harris, proved by Mr. Evans, before Mr. Harris had satisfactorily accomplished the count and examination of the first package of bills. He was not compelled to remain after that insult, consequently Mr. Mulock did not give him time sufficient to be called upon to say whether or not he would receive the bills, instead of the current coin to which he was entitled by law.

The plaintiff in this suit is the owner of the bond and mortgage described in the complaint, and of the amount due thereon, and the same, is a lien upon the property of the defendants mentioned therein. ■

There has been no tender proved.

The plaintiff is entitled to judgment according to the prayer of his complaint for the amount of principal and interest up to this date due on the bond and mortgage.

I refer the computation of interest to Mr. Dunsenbury, one of the clerks of this court. He will compute interest on two thousand dollars from 1st of November, 1849.