Kincaid v. School District No. 4

Mellen C. J.

This case comes before us on exceptions, and the only question thereby presented is, whether the instruction of the Judge before whom the cause was tried in the Court of Common Pleas was correct in respect to the tender on which the defendants relied. A payment of $63,43 was proved in part of the plaintiff’s demand, and a tender was made of $36,67. The Judge instructed the jury that the tender was made by a person lawfully authorized to make it, and that the sum tendered was suilicient — if they should be satisfied that the labor and materials furnished by the plaintiff were not worth more than $100. By the verdict given, the jury have found the claim of the plaintiff not to exceed $100. — It does not appear on what particular ground the tender was refused ; but by the offer made by the plaintiff to receive the sum and give a receipt for its amount, (though not in full of his demand,) it would seem that he objected to nothing but the amount. But a part of the instruction was, that the tender made by Snow was good ; that is, that he was empowered to make it. A tender by a mere stranger is not a valid one ; but a person who has an interest in the consequences of a tender may make an effectual tender. Co. Lit. 208 ; 5 Dane, 495. Snow is an inhabitant of the District, and as such stands liable to have his property seized and sold on execution, should the plaintiff obtain judgment in this case. Such a direct interest as this, we think, entitled him to make the tender, according to the spirit of the decisions on this point. But there is another ground on which the tender may be considered good. It is a well settled principle of law, that a tender may be made as well by an authorized agent as by the debtor himself; and it is also a plain principle that a ratification of an act done without authority, is equivalent to a previous authority. No authorities need be cited in support of either of these principles. Admitting that Snow was not authorized to make the tender, still his act in making it has been distinctly recognized and sanctioned by the School District, in placing their defence upon this tender made by Snow. This is an adoption of his act as their own-, and corporations may thus sanction an act by implication as well as individuals.

Exceptions overruled, judgment on verdict.