Maris v. Lindsey

Holden, J.,

delivered the opinion of the court.

This cause was here before in Maris et al. v. Lindsey et al., 124 Miss. 742, 87 So. 13. Upon a remand to the lower court for an accounting between the parties, much testimony was heard by the chancellor, and a decree was rendered in favor of the present appellant Maris against the appellees for an amount, with a lien upon the lands involved for its payment. The appellants being dissatisfied with the different items, allowed and disallowed in the decree of the chancellor, and the appellees also being’ dissatisfied with some of the rulings and allowances in the decree, both parties appeal to this court.

The record discloses a very large amount of conflicting testimony with reference to the items and charges claimed by each party in the accounting between them. The chancellor passed upon each claim presented, decided the disputed questions of fact, and entered his 'final decree, containing about twenty paragraphs, covering the numerous opposing claims of the litigants. The questions now presented for our decision are disputes between the parties as to what items the chancellor ought to have allowed and what items he ought to have disallowed to the respective parties.

We have at length traveled tediously through the voluminous record, carefully considered the briefs and arguments of counsel,' and we think the decree of the lower court is correct in all substantial respects, except as to the item of interest disallowed appellant Maifis, as set out in paragraph 5 of the decree. The finding of the chancellor in that paragraph is:

‘ ‘ That there was due the said Maris on said notes on the 16th day of April, 1917, the sum of five thousand five hundred fifty-eight dollars and eighty cents, with interest at the rate of six per cent, per annum from April 16,1917, to April 17, 1920, which together amounts to the sum of six thousand five hundred sixty dollars and twenty-eight cents on April 17,1920, and which is a first and prior lien on all of the lands sued for, in favor of C. T. Maris, and no interest is allowed thereon from April 17,1920, because on that date complainants made a valid and legal tender, as shown by the original and supplemental bills filed in this cause.”

We think the chancellor erred in refusing to allow interest to appellant Maris after April 17,1920, but should have allowed interest from April 16, 1917, until the time payment is made of the amount due by appellees to appellants. The chancellor refused to allow interest on the amount due Maris after April 17, 1920, because, as he held, complainants below had on that date made a valid and legal tender of the amount due, which stopped the running of interest. We do not think a valid and legal tender is shown by the record, and therefore the interest should have been allowed up to the time of payment of the principal.

The alleged tender by the appellees consisted of an offer to pay Maris any sum that might be found to be due him by the accounting between them, but denied that appellees owed Maris any sum whatever, and said in the bill that, if it was found any sum was due, they would then and now offer to pay it, or, in other words, the appellees denied that they owed Maris any amount whatever, but made the conditional offer in their bill that, if the chancellor found, after an accounting, that any sum was due appellant, they were willing to pay such sum. This is the substance of the alleged tender in the complainants’ bill.

We do not think this constitutes a valid tender of the amount due, which would stop the running of interest on the principal. . The amount tendered must be paid into court, or the tender must be of a definite sum, without any condition attached to it. It is argued by appellees that this was a good tender because the amount due could not then be ascertained, and that an offer in good faith to pay whatever might be due was the only tender that could be made under the circumstances. But we disagree with counsel in' this contention, for the reasons pointed out immediately above; the alleged tender was no more than a conditional offer of an indefinite amount. This is not sufficient to stop interest for the use of the money.

In view of the conclusion reached above, the decree of the lower court is affirmed on both direct and cross-appeal, except as to the item of interest which should have been allowed the appellant, and judgment is rendered here, affirming the decree, with an allowance of the interest to appellant as indicated above.

Affirmed, in part, and reversed in part, with judgment here.

On Suggestion op Error.

Anderson, J.

Cross-appellants in their suggestion of error reargue three propositions. They present their views with great ability and force. We have thoroughly reconsidered those three propositions. We are of the opinion that substantial justice has been done in this case, without the violation of any legal principle.

Suggestion of error is therefore overruled.

Overruled.