Mohn v. Stoner

Wright, J.

It was said by this court in Barker v. Brink, 5 Iowa 481, that payment implies an appropriation of that which is offered by one party to the other; while tender is the act of one party in offering that which he admits to be due and owing, but which is not accepted by the other. The tender does not discharge or satisfy the debt, while payment does. And see Johnson v. Triggs, 4 G. Greene 97, where it is said that a tender docs not satisfy the demand, but if kept good, and is sufficient in amount, it stops interest and saves costs. See also Freeman v. Fleming, 5 Iowa 460.

In Johnson v. Triggs, supra, it is further held that it is essential to the validity of a tender of money, that he who makes it should have the money in court, and that the nccossity for this rule is not obviated by the Code. And to the same effect is the case of Freeman v. Fleming, supra.

Upon the authority of these cases, we conclude that the court erred in giving and refusing these instructions. And as this conclusion disposes of the case in this court, and probably settles the rights of the parties in the present action in the court below, wo omit passing upon the other questions made.

Judgment reversed.