Wagenblast v. M'Kean

The opinion of the court was delivered January 10, 1854, by

Lewis, J.

— When this cause was here before, there was evi-

dence that the defendants below had a lien on the goods, for all their advances. In view of that evidence, it was held, that “if the lien be established, then it requires a tender, as well as a demand and refusal, to constitute a conversion; for there is no right to demand, until tender is made.” But in the case as now presented, there is no evidence that the defendants had any lien on the goods, except for “freight and expenses on the wool,” and these the plaintiff’s agent proposed to pay, at the time he demanded the property. Under this altered state of the facts, a demand and refusal were sufficient evidence of conversion, and the court should have enforced the law in that particular. If the parties, on a new trial, choose to put a new face on their cause, it must be decided according to its new aspect, and not by the evidence given on the former trial. The court cannot look back to that evidence in making up its decision. The motion for a nonsuit brings into consideration the evidence given on tbe new trial alone.

Tbe bill of lading, and the amounts in which the defendants credited the plaintiff' with the proceeds of the sales of the wool, and charged them with the freight and other expenses in relation to it, were sufficient evidence of the plaintiff’s right of property. The plaintiff’s acquiescence in the amounts might, under other circumstances, be evidence of the defendants’ right to sell the goods, and retain the balance of the proceeds on their amount, for other advances. But the sale of the wool, after a solemn and formal demand of it by the owner, accompanied by an offer to pay freight and charges upon it, and after a suit was brought for it, in which the plaintiff was constantly asserting his right of property, and repudiating the claim of the defendants, is not evidence of the right of the latter so to dispose of the property. The suit pending was sufficient notice of the plaintiff’s revocation of their authority to sell the wool, if any such had ever existed; and subsequently bringing the suit to a trial in due course of law, was sufficient to exclude any implication of acquiescence.in the act of the defendants.

The plaintiff’s agent, when he made a formal demand, stated that he was “prepared to pay freight and expenses on the wool.” As this statement was not disputed, the jury might have inferred that he had the money with him for the purpose of making the payments. And as the defendants formally refused to deliver the property without stating the grounds upon which they claimed to hold it, but on the contrary, intimated an intention to maintain their position at law, and that they had employed counsel for the purpose, the jury might have found, from these circumstances, that they dispensed with the production of the money for freight and expenses. As the amount of these charges was exclusively within the knowledge of the defendants, the omission to state the sum claimed on this amount, and the absolute and general refusal to deliver the property, might, very properly, have been regarded by the jury as a dispensation. The case of Finch v. Brook, 1 Bing. N. C. 253, is, in some respect, like the one before us. In that case, as here, the attorney of the party stated that he had called on the plaintiff, to pay him a debt of ¿6112s. 5d., which the defendant owed to him. He put his hand in his pocket for the purpose of taking out the money, but did not actually produce the same; whereupon, the plaintiff' said: “I can’t take it; the matter is now in the hands of Mr. Cooper,” (the clerk of Mr. Cannon, his attorney.) In that case, it was held, by Tindall, C. J., and by Garde and Vaughan, justices, that the jury, upon these facts, might have found for the defendant, on the ground of a dispensation; and had they found a dispensation, the court would not have interfered. If such circumstances would justify a jury in finding a dispensation in a case where an actual tender of the money, in the technical sense of the term, was required by law, they would be amply sufficient where no actual tender is necessary, and where a mere readiness and willingness to perform, is sufficient. Where a debt is due on a contract executed, and the party to whom it is payable is entitled to it without the performance of anything on his part, and the object of the debtor is to discharge himself from an action for it, an actual' tender, in the legal sense of the word, is necessary unless dispensed with, and the tender must be pleaded at an early stage of the cause, and the money brought into court. But where the acts to be done by the parties are mutual, and to be performed at the same time, it is only necessary for the plaintiff to aver, that he was ready and willing to perform his part. 1 Chitty’s Pl. 315, 318; 2 Id. 99; Dougl. 684; 1 East, 203; 2 Saund. 352, n. 3. In the case of Rawson v. Johnson, 1 East, 203, the question was fully considered, and the difference between a tender and a readiness to perform, recognised and explained. In the case of a tender, the money must be offered unconditionally, and the offer is an acknowledgment that it is absolutely due. But in the case of concurrent promises, or where it is payable upon the performance of some act by the opposite party, no such unconditional offer or tender is required. A party is not bound to part with Ms money, without the consideration upon which it was to be paid. Lord Kenyon’s remark, that “in administering justice, we must not lose sight of common sense,” and that where, in such a case, the defendant is unwilling to comply with his contract, it is “ an useless ceremony to lay the money down and take it up again,” is sound law. In an action on an agreement to deliver wheat at Rams-gate at a price named, the declaration averred that the plaintiff was ready at Ramsgate to receive it, and to pay immediately after the receipt of the wheat, but the defendant refused to deliver, &c., it was held good on demurrer. Norwood v. Norwood & Read, Plow. 180; Harne’s Pleader, 131; Clift. 97, pl. 82. In the case of a tender, it must be kept good by bringing the money into court, and is pleaded with an averment of “ tout temps prist.” But this is not necessary, where the object is merely to discharge the goods of the owner from a lien. In such a case, an offer to pay the money for which they are held as security, is sufficient to throw the onus on the party claiming to detain the goods. The latter is bound to state the amount of his claim, and to offer to surrender the goods upon payment. It'is true that a difference in opinion in regard to the amount of the lien claimed, will not dispense with the production of the money for the sum actually due. 10 East, 101; 4 Mee. & W. 273; 6 Wend. 22. But where, as in this case, there was a refusal in general terms to deliver the property to the owner, without assigning any reason for it whatever, such refusal might well be regarded as the assertion of an absolute right of property, which would certainly have dispensed with a tender. 1 Camp. 410, n.; 2 Bin. 23. But from what has been said, it will be perceived that the term tender, as frequently used, and as used when the case was here before, does not express with precision, the nature of the act to be performed by the plaintiff, to enable him to maintain the action. The cause ought to have gone to the jury.

Judgment reversed and venire de novo awarded.