Husser v. Bronson

Where a creditor directed the person making a tender to see his solicitor, it was held to be a refusal of the tender. (Hartney v. Boulton, 7 Sask. L. 97.)

When the offer is made and there is nothing in the transaction to require delay, if an acceptance is not signified at once or within what under the circumstances may be considered a reasonable time, the other party has the right to treat the offer as refused. (Florence v. Warren, (Tex.Civ.App.)293 S.W. 226.) There was no necessity of keeping the tender good, for the lien was discharged by the tender. (Hamilton v. Hamilton,51 Mont. 509, 154 P. 717.)

When and on what terms a party obtained money to make a tender is of no concern of the person to whom the tender is made, as the law does not give him the right to reject an offer because he objects to the source from which it comes. (Murray v.O'Brien, 56 Wn. 361, 28 L.R.A. (n.s.) 998, 105 P. 840. See, also, Leet v. Armbruster, 143 Cal. 663, 77 P. 653.)

In the case of Kortright v. Cady, 21 N.Y. 343, 78 Am. Dec. 145, the tender was made by the owner of the equity of redemption who was a total stranger or mere volunteer. It was held that a tender by the grantee of the equity of redemption of the money due upon the mortgage at any time before foreclosure discharged the lien. To constitute a tender, there must be a definite offer on the one hand and an unqualified refusal to accept on the other. (Supreme Tent, Knights of Maccabees, v. Fisher,45 Ind. App. 419, 90 N.E. 1044.)

In order to discharge the lien of a mortgage, the proof must be clear that the refusal of tender was palpably unreasonable, absolute, arbitrary and unaccompanied by any bona fide, though mistaken, claim of right. (Easton v. Littooy, 91 Wn. 648,158 P. 531.)

Tender must be open, fair and reasonable; so clear and explicit as to leave no doubt of the intention to satisfy and discharge the mortgage. (41 C.J. 798.) While there is some conflict of authority on the question, it has been held that the demanding of a release of mortgage is such a condition as to make the tender insufficient. (Id. 799.)

Appellant, without assuming the mortgage debt, has come into a court of equity, asking that the land which she purchased be freed of the mortgage lien, and notwithstanding "that he who seeks equity, must do equity," she has never produced one cent of the mortgage indebtedness, nor has she so much as alleged a readiness or willingness to pay the amount which was due on the date of her alleged offer of a tender. This would seem shocking to the equitable conscience of any court. The rule that a legal tender discharges the lien of the mortgage is a harsh one; courts should not extend its scope. In the case of Knudson v.Fenimore, 69 Okla. 3, L.R.A. 1918C, 181, 169 P. 478, where a tender was actually made by the purchaser of the equity of redemption to the mortgagee, the court on appeal held that the tender did not discharge the mortgage lien. (See, also,Brunswick Realty Co. v. University Inv. Co., 43 Utah, 75,134 P. 608.) On February 4, 1928, C.R. Bronson and wife executed and delivered to plaintiff their promissory note for $3,165, due two years after date, with interest payable semi-annually, and, to secure the payment of the note, executed and delivered a mortgage upon certain lots in the city of Havre. The interest due on February 14, 1929, was not paid. On March 27, 1929, C.R. Bronson and wife deeded the mortgaged property to Jennie Bronson, of San Francisco, California, who did not agree to pay the note and mortgage. Prior to July 9, 1929, demand had been made upon C.R. Bronson for the payment of the note. The note not having been paid, this action was brought to foreclose the mortgage. The complaint is in the usual form.

Defendant Jennie Bronson answered, admitting the material allegations of the complaint and alleging that on July 9, 1929, she tendered to plaintiff the amount due on the mortgage sought to be foreclosed, the refusal of plaintiff to accept, and that by reason thereof the lien of the mortgage was released. She also interposed a counterclaim for damages for loss of sale of the property by reason of plaintiff's refusal to accept the tender and satisfy the mortgage. The cause was tried before the court with a jury. At the close of defendant's testimony the motion of plaintiff to dismiss defendant's counterclaim was granted. Special interrogatories were propounded to the jury, and thereafter the court made and filed its findings of fact, conclusions of law and decree in favor of plaintiff, foreclosing the mortgage set forth in plaintiff's complaint, and defendant appeals.

Briefly, the testimony shows the execution and delivery of the note and mortgage and the default in interest payments as alleged. In defense it appears that on July 9, 1929, defendant had negotiated a sale of the mortgaged property to Percy Doles, who delivered his check for the purchase to A.O. Baker; at the same time C.R. Bronson left a deed to the property. The check was to be delivered to Bronson when a satisfaction of plaintiff's mortgage had been secured. At about noon of that day, Baker went to the office of Dr. Husser, husband of plaintiff, and, not finding him in, left a satisfaction of mortgage with Mrs. Lerty, an employee, with instructions that she deliver the same to Dr. Husser, and, when executed, he (Baker) would bring over his check for the amount of principal and interest. Attached to the satisfaction was a slip showing the amount due as he had computed it. Dr. Husser did not return to his office until about 2 o'clock in the afternoon, at which time his attention was called to the papers. When the note and mortgage were executed they were left in the possession of A.F. Lamey, plaintiff's attorney, who had retained possession of them. Dr. Husser instructed Mrs. Lerty to communicate with Lamey for the purpose of verifying the amount due. As a result of the interview with Mr. Lamey, it became necessary for her to examine certain records regarding the first payment of interest which were in a storeroom of the office building. The information was not obtained until late in the afternoon. At about 4 o'clock Baker returned to the office of Dr. Husser. There is some conflict regarding statements made at that time by Dr. Husser, but it does appear from Baker's testimony that Dr. Husser did not refuse to accept the amount due upon the note and mortgage. At about 7 o'clock Dr. Husser and Bronson met on the street and had a conversation. Bronson testified, in effect, that Dr. Husser refused to execute the satisfaction; this testimony is denied by Dr. Husser. Shortly thereafter Bronson called on Doles and advised him that the deal was off. Doles asked that Bronson allow the matter to stand until the following day and in the meantime he (Doles) would endeavor to secure a satisfaction. Bronson consented to Doles' request. Doles then requested one Bossuot to communicate with Dr. Husser for the purpose of obtaining a satisfaction of the mortgage. Bossuot called upon Mr. Lamey whom he knew represented plaintiff, and together they called upon Doles. Lamey advised Doles that the satisfaction would be forthcoming as soon as it could be executed. At that time plaintiff was in Glacier Park. The same evening, and between 9:00 and 9:30 o'clock, Bronson went to Baker's office, demanded and received the return of the deed, saying the deal was off, and advised Baker to return the check to Doles, which was done the following day during the noon hour.

It is conceded by defendant that, after the offer of tender[1] was made, plaintiff was entitled to a reasonable time in which to accept or reject the offer. The court found, among other things, that the offer of tender was not refused by plaintiff, and "that said offer of tender was withdrawn by defendant, Jennie Bronson, before plaintiff had had a reasonable opportunity to accept said offer."

The determinative question presented for our consideration is whether the evidence preponderates against the court's finding.

From the brief summary of the evidence it will be noted that[2, 3] the evidence is in sharp conflict. The rule is firmly established in this jurisdiction that the findings of the trial court in an equity case, based upon substantially conflicting evidence, will be sustained on appeal unless the evidence preponderates against them. Here the evidence does not preponderate against, but amply supports, the findings that plaintiff did not refuse the offer of tender, and that defendant Jennie Bronson withdrew the offer of tender before plaintiff had a reasonable opportunity to accept the same.

The conclusion we have reached makes a determination of other questions presented unnecessary.

For the reasons given, the judgment is affirmed.

MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICE ANGSTMAN concur.

ASSOCIATE JUSTICES MATTHEWS and GALEN, being absent, did not hear the argument and take no part in the foregoing decision.