
    ACCEPTANCE — BAR—JUDGMENT.
    [Cuyahoga (8th) Circuit Court,
    June, 1905.]
    Marvin, Winch and Henry, JJ.
    Thomas L. Reeder v. Harris E. Mason et al.
    •ACCEPTANCE OF MONEY PAID INTO JUSTICE’S COURT DOES NOT BAR RECOVERY OF Larger Sum on Appeal.
    The payment hy defendant, into justice’s court, of a sum of money less than the magistrate’s judgment subsequently rendered against him, and the fact that plaintiff withdrew and appropriated to his own use this sum after defendant’s appeal to the court of common pleas, will not operate to bar the plaintiff’s action for the balance claimed, nor preclude his recovery of a further sum.
    [Syllabus.approved by the court.]
    Error to Cuyahoga common pleas court.
    A. N. Mayers and Berkeley Pearce, for plaintiff in error:
    Upon the question whether a certain sum tendered and paid into the justices court by defendants, and, after judgment and) pending appeal proceedings, received and accepted by plaintiff' concludes him thereby from proceeding to recover the full amount he has always claimed to be due, less what he has received. McKercher v. Curtis, 35 Mich. 478; Murphy v. Cold Stock Tel. Co. 3 N. Y. Supp. 804; Mtirray v. Bethune, '1 Wend. 191; Higbee v. Ninety-six Hundred Cases Tomatoes, 59 Fed. Rep. 783; Beil v. Supreme Council, 42 N. Y. App. Div. 168 [58 N. Y. .Supp. 1049]; McCalley v. Otey, 103 Ala. 469 [15 So. Rep. 945]; Sleght v. Rhinelander, 1 Johns. 192; Huntington v. Ziegler, 2 Ohio St. 10; Redfern v. Ullery, 5 Circ. Dee. 435 (12 R. 87); Thayer v. Brackett, 12 Mass. 450; 28 Am. & Eng. Enc. Law (2 ed.) 16, 32; Higgins v. Halligan, 46 Ill. 173; St. Louis, Ft. S. & W. Ry. v. Davis, 35 Kan. 464; Duluth ■Chamber of Commerce v. Knowlton, 42 Minn. 229 [44 N. W. Rep. 2]; Folsom v. Banking Co. 160 Mass. 561 [36 N. E. Rep. 469]; Beckman v. Birchard, 48 Neb. 784 [67 N. W. Rep. 784]; Ceary v. Page, 22 N. Y. Super. Ct. 290; Willey v. Warden, 27 Vt. 655; Sullivan y. Finn, 4 Greene (la.) 544.
    H. I. Emerson, for defendants in error.
   WINCH, J.

Plaintiff brought his action against the defendants before a justice of the peace, alleging in his bill of particulars that said defendants were indebted to him in the sum of $55.70. Thereupon defendants tendered and paid into court the sum of $33.82, together with $2 for costs accrued to that time. Thereafter the case was heard and judgment rendered in favor of the plaintiff for the sum of $40 and his costs, $8.80.

Defendants appealed the case to the common pleas court, and after plaintiff had filed his petition therein defendants filed an answer setting up the tender made by them in the justice’s court, and alleging that while the case was pending in the common pleas court plaintiff received and accepted the amount of said tender from said justice.

The case was submitted to the common pleas court upon the pleadings and that court found for the defendants, holding that plaintiff’s accepting the amount of the tender from the justice was a bar to his recovery of any further amount.

The case is here on error to review said judgment of the common pleas court.

The tender made by the defendants was under Eev. Stat. 5137 (Lan. 8652), which provides that in case of tender of the amount due into court during pendency of an action:

“The plaintiff shall not have judgment for more than the money so due and tendered, without costs, and shall pay the defendant his costs.”

Speaking of this tender, Judge Swan, on page 860, of his treatise (20 ed.) says:

“The offer of money must be without any qualification or condition’.”

We believe this properly states the law, and it is also the law that the acceptance of an unconditional tender does not amount to an accord and satisfaction, but the creditor may accept the amount tendered and maintain an action for the balance.

The tender was an acknowledgment that at least its amount was due plaintiff in any event. In such case, it has been held by the Supreme Court that the plaintiff is not required to return what he* has received before suing for the balance. Insurance Co. v. Hull, 51 Ohio St. 270, 284 [37 N. E. Rep. 1116; 25 L. R. A. 37; 46 Am. St. Rep. 571].

There is a head noté to a ease decided and reported by Judge Wright on the circuit which reads as follows:

“A tender before suit, and bringing money into court, bars the right to recover the amount tendered, or costs, though the plaintiff may take the money brought into court, and proceed for any amount beyond the tender, and if he recover more, get costs.” Foote v. Palmer Wri. 336.

While the facts in this ease did not warrant such a head note, we believe the learned judge therein expressed the law of this state.

In the case of McKercher v. Curtis, 35 Mich. 478, it was held:

“Where in a suit in a justice court for unliquidated damages the defendant has made a tender of a. sum of money on the trial, and on its being refused has paid in into Court, the acceptance of this money from the justice by the plaintiffs after judgment and appeal, is not a bar to recovery of a larger sum under the pending issue upon the appeal, on the basis of an accepted tender in court.”

The court, however, calls attention to the fact that the case was one for unliquidated damages, as to which the statute regarding tender did not apply. That is also true in Ohio, where the statute, Rev. Stat. 5137 (Lan. 8652) provides for tender “in an action on a contract for the payment of money.”

But in the ease of McCalley v. Otey, 103 Ala. 469 [15 So. Rep. 945], involving the foreclosure of a. mortgage, the amount found due by the chancery court was paid into court, and the plaintiff after he had appealed his case to the supreme court withdrew from the chancery court the amount there paid in. The supreme court found this no bar to his recovery of a further amount which it found clearly due him.

We can see no good reason why the plaintiff should not have what the defendant pays into court and proceed with his action for the balance. If he fails to recover more than the tender, the statute puts upon him the penalty of paying the costs and we apprehend that that is all it was intended' to provide.

Because the judgment is contrary to law, it is reversed.

Marvin and Henry, JJ., concur.  