Byington v. Walsh, et al.

Walsh, to the defendant Freeman. On the 2nd day of June, 1856, Freeman redeemed said lands by paying to the treasurer the delinquent taxes, interest and costs. On the 14th day of October in the same year, he was, by leave of court, made a party defendant in this proceeding, and filed his answer setting up the foregoing facts.

On the trial the defendant offered in evidence the certificate of redemption executed by the treasurer, and the deed of the sheriff conveying the property pursuant to the above mentioned sale; to the introduction of which the plaintiff objected. The plaintiff offered evidence to show that he had paid the taxes which had accrued upon the property after the redemption by the defendant on the second day of June, 1856, which the court refused to recieve. To the ruling of the court in admitting the evidence offered by the defendant and in refusing to recieve that offered by the plaintiff exceptions were taken and they are now assigned as error. The plaintiff appeals.

LeGrand Byington, pro se, relied upon Byington v. Bookwalter 7 Iowa 512.

Clarke & Davis, for the appellee, argued that Byington v. Bookwalter, is not applicable to this case.

WRIGHT J.-1. Freeman was properly made a party defendant on his motion. The record shows that he had an interest in the land, and in this respect the case differs from that of Byington v. Bookwalter, 7 Iowa, 512. The purchase of the land by Freeman under an execution against Walsh, (the owner of the land at the time of the tax sale) whether made before or after such tax sale, gave him such an interest as to justify the court in making him a party defendant. And it could make no difference that he obtained the sheriff's deed, predicated upon his certificate, after he was made defendant and filed his answer.

II. The amount paid by Freeman to redeem we understand

Braddy & Braddy v. Lumery, et al.

from the record to be fully sufficient to meet all that plaintiff had paid according to the averments of his petition, with interest thereon, and the costs as testified to by the clerk. Plaintiff says that he paid at the tax sale $1,82, June, 1855, and on the 15th of November, 1855, $0,68 taxes. This action was commenced December 5th 1855, and on the 2nd June 1856, Freeman paid to the treasurer $12,50 for the redemption of the land. The clerk testifies that the taxable costs at that time were $9,45. Allowing 25 per cent interest on the amount paid by plaintiff for taxes and charges, and the aggregate sum with costs, will be found to make on the 2nd June 1856, within a fraction of a cent of $12,50.

III. Plaintiff had no right in this action to be repaid the taxes paid by him subsequent to the redemption by Freeman. Byington v. Allen ante.

Judgment affirmed.

BRADDY & BRADDY V. LUMERY, et al.

1. NEW TRIAL. The judgment of the court below will not be reversed because of error in the ruling of the court on a legal proposition when the record shows that with such error corrected the verdict on a second trial would be the same as the one first rendered.

Appeal from Page District Court.

SATURDAY, OCTOBER 6.

PLAINTIFFS sue upon an injunction bond. They recovered a verdict for $1500, which, on defendants' motion, was set aside and a new trial ordered. Plaintiffs appeal.

Wear, Morledge & Chittenden for the appellants.

Rector & Harvey for the appellees.

WRIGHT, J.-Though we might conclude that the court

Mohn v. Stoner.

erred in the reception or rejection of certain testimony offered, or in giving and modifying the instructions asked, we would still be unable to say that there was error in setting aside the verdict. The cause was submitted to the jury upon a large amount of written and parol testimony; their verdict was in favor of plaintiffs in the sum of $1500; defendants moved to set this aside for the reason, among others, that it was against the evidence, and excessive. This motion was sustained, and we are not prepared to say that in so ordering the court abused its discretion. If the motion had been overruled, we should not have interfered, nor shall we where it has been sustained.

Plaintiffs insist that if certain testimony offered by them had been received, and if the court had given the law as they claimed, the verdict would have been most manifestly right; and that as their positions ought to have been sustained, this court will correct these errors and at the same time sustain the verdict. This is not a case falling within the rule for which they contend. If the court erred in the decision of a legal proposition, and we could see that with such error corrected, the verdict on a second trial must necessarily be as first rendered, then we might reverse the order for a new trial. Here, however, it is very far from being manifest that if the law is as claimed by appellants, a second trial would result as the first, and that the court below therefore erred in setting aside the verdict.

Judgment affirmed.

MOHN V. STONER.

1. TENDER. A tender does not operate as a payment or discharge of the debt admitted to be due.

2. SAME. It is essential to the validity of a tender that the money be brought into court.

3. CASES CITED AND FOLLOWED. Barker v. Brink, 5 Iowa 481: Johnson

Mohn v. Stoner.

v. Triggs 4 G. Greene 97; Freeman v. Flemming 5 Iowa 460, as to the sufficiency and effect of a tender, cited and followed.

Appeal from Des Moines District Court

SATURDAY, OCTOBER 6.

REPLEVIN for eight thousand oak staves cut by plaintiff on defendant's land, for which defendant was to be paid five dollars per thousand. Some testimony was introduced at the trial showing a payment of part of the contract price and tending to show a tender of the balance. The court instructed the jury: "If plaintiff offered to pay defendant the amount and defendant refused to receive it, the effect of such refusal would be the same as payment." Defendant asks the following instruction: "There was no tender unless the money so tendered was in court ready to be paid to defendant." This instruction was refused, to which refusal, as also the giving of the previous instruction, defendant excepted and now appeals.

Hall, Harrington & Hall for the appellant.

Browning & Tracy for the appellee.

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 does 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 neces

W. H. Courtwright & Co. v. Leonard.

sity 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, we omit passing upon the other questions made.

Judgment reversed.

W. H. COURTRIGHT & Co. v. LEONARD et al.

1. DELIVERY OF PERSONAL PROPERTY. In the sale of personal property, delivery is essential to vest the title in the vendee.

2. SAME. When an entire thing or bulk is sold, the delivery will be sufficient, if made in as complete manner as the character of the property at the time will permit.

3. SAME. When property is sold by weight, measure or numbers, to constitute a complete delivery the specific amount must be weighed, measured or counted, so as to be separate from all similar property in the bulk or mass with which it is mixed.

Appeal from Des Moines District Court.

SATURDAY, OCTOBER 6.

REPLEVIN for 25,000 brick, which plaintiffs claim to have bought of one Moore, and which were levied upon by one of the defendants, as sheriff, under an attachment, at the suit of Leonard, against said Moore. The facts attending the sale by Moore to plaintiffs are as follows: On the 27th of September, 1857, Moore was indebted to plaintiffs near the sum of $150, which he agreed to pay them out of a kiln of brick which he had made. The kiln contained 110,000, each arch containing between 9,000 and 10,000. Plaintiffs' agent, at their request, examined the kiln to ascertain the quality of the brick. This agent "computed 25,000 of the