Cothran v. Scanlan , 34 Ga. 555 ( 1866 )

Walker, J.

Several questions were made in this case, but the depisiop of one will dispose of the others. Is a tender alleged ? We think not.

[1.] We recognise the doctrine that the same precision is not required in equity pleadings which is exacted at law; but, even in equity, the averments must be sufficiently certain that issue may be taken thereon. “ The general statement that a tender was made, is not enough. It is as defective as a general averment of fraud. That a tender was made is a conclusion of the pleader simply. He must state the facts which constitute a legal tender. The same precision, I know, is not required in'equity pleadings that is exacted at law; yet, in the language of Lord Thurlow, he must state something substantial. The facts must be so stated as to be issuable. Defendant must be notified of the facts out of which the plaintiff’s equity springs, and which he is to controvert. The rule at law is that a defendant pleading a tender, must show an actual production of the money, and an offer to pay it, or that the production of it was dispensed with by his adversary. 10 East, 101; 4 Esp. N. P. C. 68; 1 Bingham's N. C. 253; 6 Wen. 22; 3 Star. Ev. 1559; 2 Wils. 74; Wheat. Selw. 153; Substantially, a party in equity claiming relief on the ground of tender, must so plead. It is not enough, at law, to plead that the party is still ready and willing to pay; he must state that he was always ready to pay, in addition to that. And if the declaration and plea show that the defendant was not always ready and willing to pay, the plea will be bad. 1 Saun. 33, n. 2; 8 East, 168-9; 10 East, 168. The averments are fatally defective in this, that they state a conditional tender. The offer to pay must be unconditional. 8 Greenl. 107; Ib. 119; McGehee vs. Jones; 10 Ga. R. 132. These principles are applicable to this case.

[2.] The tender here'was made, such as it was, “upon the condition that said Cothran and Black would then and there make titles,” etc. But was there any tender at all ? If so, what was tendered, how much was it ? How can issue be taken upon such allegations?, They are too vague.

[3.] Besides all this, speaking for myself, I am inclined to think the specie value of currency at the time payable,' is not the sole criterion prescribed by the ordinance of the convention. The language would seem to allow and require a much wider scope for investigation. ¥e think, therefore, the Court erred in overruling the demurrer of plaintiffs in error.

As to the proposition to amend the bill, we apprehend that is a matter we had better let the Court below pass upon, as was done in the case of Sullivan, Cabot, etc. vs. Rome R. R. Co., 28 Ga. R. 29. s Judgment reversed.