
    Henry P. Fry v. Sidney O. Russell.
    
      Mortgages: Tender: Refusal: Offer of discharge: Acceptance: Waiver of tender: Recognition of claim: Common counts. Where a tender of the amount duo on a mortgage containing a condition simply, and not accompanied by any collateral promise to pay, or personal obligation, has been once refused because it did not include the amount of an attorney fee claimed to he due, but the party afterwards waives the attorney fee and tenders a discharge, the acceptance by the mortgagor of the discharge, with the remark that he would take his own time to pay in, operates as a waiver of his previous tender and a recognition of the mortgagee’s right to demand and receive from him the amount due on the debt; and this amount is recoverable upon the common counts in assumpsit.
    
    
      Heard and decided October 25.
    
    Error to Ingham Circuit.
    
      This cause was tried by the court without a jury and the following special finding was filed, viz:
    “ From the evidence and admissions of the parties, I find the following facts:
    “That on the 6th day of November, 1868, the defendant executed and delivered to the plaintiff a mortgage upon real estate to secure the payment of the principal sum of three hundred dollars, with interest at the rate of ten per cent, per annum, payable annually, the principal payable on the 1st day Of May, 1870; that the sum secured to be paid by said mortgage was the purchase money for the lands described in said mortgage.
    "'■“That there was no personal obligation aecompanying said mortgage; that four several endorsements were made upon said mortgage, amounting in all to one hundred and thirty-nine dollars and eighty-four cents, as follows: May 1st, 1869, twelve dollars and ninety-one cents, interest; May 1st, 1870, thirty dollars, interest; February 10th, 1873, thirty-two dollars; April 1st. 1874, sixty-four dollars and ninety-three cents; that some time in the year 1874 the plaintiff commenced a statutory foreclosure of said mortgage for the amount claimed to be due upon it, and that subsequent to the commencement of such foreclosure the defendant made a tender of the amount due upon the mortgage, not including the attorney fee mentioned therein, which tender the plaintiff declined to accept at the time without the attorney fee, but upon consulting his attorney, and upon defendant’s threatening to prosecute him for not discharging the mortgage, he subsequently executed and delivered to the defendant a discharged the mortgage; that the defendant accepted and received the discharge of the mortgage, but declined paying over the tender, saying, that he would then take his own time to pay it.
    “My conclusions of law upon the facts so found are: (1) That the plaintiff is entitled to recover, under the count for money had and received, to the amount of the tender, with interest thereon at the rate of seven per cent, from the time of the tender to the date of the rendition of judgment, which amounts to three hundred and sixty-eight dollars and forty-eight cents, including such interest;
    (2) That by operation of law the amount of money tendered vested in the plaintiff when the discharge of the mortgage was executed and delivered by plaintiff and accepted and received by the defendant.”
    
      Jay Galkins and T. A, Wilson, for plaintiff in error.
    
      Shaw & JPrindle and M. V. Montgomery, for defendant in error. '
    
      
       As to discharge of mortgage by tender, see note to Sager v. Tapper, supra, p. 134.
    
   *Per Curiam:

The amount the plaintiff below was allowed to recover was the purchase price of lands sold by him to the defendant below and never paid for. A mortgage had been given for the amount, which it was claimed had been discharged by tender. Its discharge as a lien would have been clear but for the fact that it provided for the payment of an attorney fee in case of proceedings to' foreclosure. Plaintiff at the time of the tender claimed this fee, but afterwards concluded to waive his claim and executed and delivered a discharge. It is not entirely clear upon the face of the mortgage that the fee was not payable in consequence of proceedings which had been taken; but whether that was so or not, the offer of the discharge by plaintiff on receipt of the amount due on the debt was in the nature of an offer of compromise, and when defendant took the discharge, instead of relying upon his tender, saying at the time, he would take his own time to pay in, he thereby recognized the right of the plaintiff to demand and receive from him the amount. We also think this was recoverable under the money counts.

Judgment affirmed.  