
    Hanson v. Todd.
    
      Action on Common Gounts for Worlc and Labor Done, and Materials Furnished.
    
    1. Plea of tender; acceptance of money paid into court —When a tender before suit brought is pleaded (Code, § 2685), and the plaintiff neither demurs to the plea, nor takes issue on it, but accepts the money paid into court, the defendant is entitled to have the suit dismissed.
    Appeal from the City Court of Anniston.
    Tried before the Hon. B. E. Cassadt.
    McLeod & TüNSTadl, for appellants,
    cited Monyhan v. Moore, 77 Amer. Dec. 468, note; Panic v. Wiley, 67 Ala. 310; Wright v. Young, 70 Amer. Dec. 453; Monroe v. Ghaldeclc, 78 Ill. 429; Haenssler v. Dumoss, 14 Mo. Ap. 103; Appleton v. Donaldson, 3 Penn. St. 381; Gain v. Gimon, 36 Ala. 168; 51 Texas, 98; 45 Mich. 14.
    BLACKWELL & Keith, contra,
    
    cited 9 Bacon’s Abr. 344^6; Supply Ditch Go. v. Elliott, 3 Amer. St. 586.
   CLOPTON, J.

Tbe suit is for money cine plaintiff for materials fnrnisliecl and labor clone in repairing tbe dwelling-house of defendant and an out-house, and erecting a fence around bis lot. Tbe only disputed question of fact is tbe amount due. In answer to tbe suit, which was commenced August 18, 1890, defendant filed a plea of tender of tbe amount claimed by him to be clue, accompanied, by tbe delivery of tbe money into court. Plaintiff, without demurring to tbe plea, or talcing issue thereon, received, February 2, 1891, tbe money from tbe cleric, under tbe order of the court, and struck from tbe complaint tbe amount so received. Thereupon defendant moved to dismiss tbe suit at tbe cost of plaintiff. "What is tbe legal consequence, when tbe plaintiff elects to take, and receives tbe money brought into court upon a plea of tender before suit commenced, is tbe controlling question presented by tbe record, and tbe only one necessary to be considered.

As a general rule, a debtor has no right to insist that bis creditor shall, by tbe reception of tbe amount tendered, be precluded from claiming that a greater sum is due, and suing to recover tbe same. A tender on such conditions that its acceptance would constitute, or clearly imply, an admission by the creditor that it was in full of bis claim, is invalid, and may be refused. Tbe only effect of a tender refused, if pleaded and tbe truth of tbe plea established, is to stop tbe interest, and exempt tbe defendant from tbe costs of a subsequent suit. While a mere tender, though of tbe whole amount due, when unaccepted, does not operate to extinguish or satisfy tbe claim, yet, when made in lull of tbe amount due, and accepted, without protest as to its sufficiency, tbe debt becomes extinguished. Tbe creditor may reject a tender on condition that he receive it in full of bis claim, but if be accepts it, be is bound by tbe condition, and will not be allowed to keep tbe money and repudiate tbe condition. — Miller v. Holder, 18 Ver. 337. A tender, if accepted, is accepted as made. Tbe statute (Code, § 2685) requiring a plea of tbe tender of money to be accompanied by a delivery of tbe money to tbe clerk of tbe court, is declaratory of tbe general rule. A plea of tender, if in proper form, contains, substantially, tbe averment that tbe sum tendered and brought into court is tbe entire amount due plaintiff. Tbe plea is in bar of, and, if proved, defeats any recovery. Bringing tbe money into court, on such plea, has all tbe effect of a tender on condition that tbe plaintiff receive tbe amount in full satisfaction of bis claim. It is disembar-rassed of tbe principle, that a tender can not be made in such manner that tbe reception of tlie money satisfies tlie creditor’s demand. Tlie object of tbe statute, in requiring a plea of tender to be accompanied by a delivery of tlie money to tlie clerk of tlie court, is, tbat it shall be placed in tlie custody of tbe court, so that it may be paid to plaintiff whenever willing to accept it, and put an end to tbe litigation, or may be awarded to tlie party to whom it is ascertained to belong rightfully.- — Frank v. Pickens, 69 Ala. 369.

Though the money is produced, and placed in the custody of the court, it remains the property of the defendant, until either the plaintiff accepts it, or the truth of the plea is established; in either event, the court may order it paid to the plaintiff. — Foster v. Napier, 74 Ala. 393. So also, where the plaintiff voluntarily accepts the money paid into court, without contesting the sufficiency or truth of the plea, it thereby becomes his property; but its acceptance is upon the terms of the plea, that is, in full satisfaction and extin-guishment of his claim.

When the benefit of the tender is claimed in court, the plaintiff may elect to receive it, and put an end to the litigation, or he may take issue on the plea, and contest the fact, validity and sufficiency of the tender. The voluntary reception of the money by plaintiff is tantamount to a confession or admission of the truth of the plea — equivalent to an acceptance of the money in satisfaction of his entire demand ; he can not afterwards say that it was accepted only as a payment pro tanto. Under the common-law rule, if the plaintiff take the money which has been brought into court, on a plea of tender before suit, the proper judgment is, eat inde sine die. — 9 Bacon’s Abr. 339. Tlie same result logically follows, when the plaintiff withdraws the money brought into court under the statute. In such case, if the plaintiff elects to take the money, the proper practice is for the court to order it paid to him, and render judgment against him for costs. — Haeussler v. Dumoss, 14 Mo. App. 103; Monroe v. Chaldeck, 78 Ill. 429. The motion of defendant should have been granted.

We have not considered whether the proof shows a valid tender, as no such question is raised by the record.

Reversed, and judgment rendered dismissing the suit at the costs of plaintiff.  