Hay v. Ousterout ( 1828 )

By the Court:

The jury have found that, after the commencement of the suit, the whole amount of the debt which they find to be due was tendered to the plaintiff, with the costs that had then accrued, as charged in the notice. This is finding a tender and refusal, which, upon settled principles, precludes the.party from recovering the further costs that may be incurred, by continuing to prosecute the suit. If the verdict, as directed to be -recorded by the court, can stand, the judgment is clearly erroneous as to costs, and so far, must be reversed.

It is urged against the verdict, that it involves more than the verdict, as returned by the jury, fairly warrants. But we do not think so. The general terms “ tender was good," are, in substance, the same with those recorded. The tender could have no validity to defeat the plaintiff’s action, unless accompanied by a refusal. The expressions used by the jury denoted that they had found the tender, and the matters connected with it, to be as alleged in the notice. And it was proper for the court to conform the verdict to the clear intention of the jury. Nothing more was done here ; *and there was no error in doing thus much. The judgment must be reversed as to the costs, and as to the damages affirmed.^†

† Note. — The Hon. Jacob Burnet, being elected a senator in Congress, resigned his office of judge of this court at this stage of the business. The subsequent causes were all decided by the three remaining judges, Pease, Hitchcock, and Sherman.