Read Mullan Motor Co. v. McAtee

PHELPS, Chief Justice.

Appellee’s motion for rehearing is granted to correct an error in the original opinion. In that opinion we treated the tender of a check for $2,000 by the Read Mullan Motor Company to McAtee on January 3, 1952, as a valid tender, which if correct, would have had the effect of relieving appellant of interest from the date of tender. Upon re-examination, we find our holding was error for the reason that under our interpretation of the proviso in the resolution, its only effect upon the first portion thereof fixing the compensation of Mc-Atee for the business year ending December 31, 1951, was to accelerate the due date of the portion of said salary based upon 10 per cent of the profits of appellant company (not in excess of $80,000) to the date of the termination of his employment with it. This occurred on March 31, 1951. Therefore the tender of $2,000 on January 3, 1952, without including the interest thereon from March 31 was not a valid tender because the tender was not the full amount owed. In all other respects our original opinion is adhered to. A re-examination of it discloses no departure from the well-charted course of appellate procedure nor any violation of due process.

Judgment reversed with directions to enter judgment for plaintiff for $2,000 with interest at 6 per cent from March 31, 1951, until, paid. Defendant-appellant is entitled to its costs in the trial court and on appeal.

STANFORD and UDALL, JJ., concurring.