
    Gardner, et al. v. Black.
    
      Action of Damages for Breach of Contract; Plea of Tender; Acceptance by Plaintiff.
    
    1. Plea of tender; acceptance of money paid into court. — Where a plea of tender is interposed, accompanied by payment into court of the amount admitted to be due the plaintiff, with accrued costs, together with a plea of recoupment against the balance claimed, and the money paid into court is paid to the plaintiff on his motion, his acceptance of the amount so tendered and paid will be treated as a full satisfaction of plaintiffs whole demand, and entitles the defendant to a dismissal of the complaint.
    2. ,Swine. — A plea of tender never goes to the whole of the plaintiff’s demand, but is an admission to the extent of the amount tendered, and is a denial only of the balance of plaintiff’s claim.
    3. When motion by defendant to dismiss may be made. — A motion to dismiss the plaintiff’s action, upon his acceptance of the amount paid into court by the defendant, is seasonably made, though a jury has been empannelled to try the cause, and though the money had been paid to the plaintiff under an order previous to the term at which the motion to dismiss is made.
    Appeal from Anniston City Court.
    Tried before tbe Hon. B. F. Cassady.
    J. J. Willett, for appellant.
    1. The court erred in overruling defendant’s motion to dismiss plaintiff’s cause of action. The money paid into court was paid to the plaintiff against the objection of defendant.— Hanson v. Todd, 95 Ala. 328. 2. The plaintiff is estopped from saying that the plea of defendant, accompanying his payment into court of the amount admitted to be due, is not a plea of tender. It was filed as a plea of tender and so designated in the plea itself; it was not demurred to by the plaintiff; and was so named by the plaintiff in his motion ashing that the money paid into court under it be paid to him, and it is treated by the court as a plea of tender in its order directing the clerk to pay over the money to the plaintiff. Where issue is joined on' a defective plea without testing its sufficiency by demurrer, evidence relevant to the issue can not be excluded. McKinnon v. Lessley, 89 Ala. 626; Mudge v. Treat, 57 Ala. 1; Oa. Pac. B. B. v. Propst, 90 Ala. 1. 3. While it is immaterial when the motion to dismiss was made, the bill of exceptions in this case shows that the motion was made as soon as the defendant had learned that the plaintiff had actually withdrawn the money.
    John F. Methvin, for appellee.
    1. The first plea of defendant was not a plea of tender, and his motion to dismiss plaintiffs’ action came too late, being after issue j oined on other pleadings. Pleadings are construed more strongly against the pleader. — Gity Council v. Hughes, 65 Ala. 201. After issue joined and presented to the jury they should be decided, and a motion to dismiss should not be considered.— Walmer-stadt v. Jacobs, 16 N. West. Bep. 217. If defendant’s plea was one- of tender, his objection to plaintiffs taking- the money was a withdrawal of his said plea — Carr v. Miner, 92 Ill. 604.
   McCLELLAN, J.

This action is by Black against Gardner and Goodwin. Tbe complaint contains two counts. In tbe first tbe sum of nine hundred, seventy-one and 65-100 dollars is claimed as damages for tbe breach of a contract whereby tbe plaintiff bad undertaken to build, and bad built be alleges, a house for tbe defendants. Tbe second count claims a like sum alleged to be due by account for material furnished and work and labor done by plaintiff in tbe erection of a certain bouse for tbe defendants.

Three pleas were interposed by defendants. In tbe first of these it is averred: “That said plaintiff, Joel Black, left tbe State of Alabama before tbe complaint was filed in this case and has not been within this State at any time since so that tender might be made to him, and that defendants are indebted to said plaintiff in the sum of one hundred and thirty-four and 44-100 ($134.44) dollars, and now bring the money into court together with tbe court costs incurred to date, which they pray the court may be taken and considered as a tender to said plaintiff of said amount.” The second and third pleas are by way of recoupment against the balance of the amount sued for after deducting one hundred, thirty-four and 44 -100 dollars, the sum admitted to be due and paid into court under the first plea.

The complaint was filed August 31, 1891, and the pleas were filed September 15,1891. On October 12,1891, plaintiff filed a replication to defendants second and third pleas, setting up that plaintiff’s failure to complete the house within the time stipulated in the contract, which failure is made the basis of the damages sought to be recouped by those pleas, was due in part to necessary cessation of the work on account of inclement weather, and, for the rest, to the delay of defendants in providing certain of the material, &c., for the building, according to the terms of the agreement, and that the additional time complained of had been granted plaintiff by defendants in the manner provided in the contract. On this latter date the plaintiff also moved for an order directing the clerk of the court to pay to him the sum tendered and paid into court. The motion was granted, the money paid over accordingly and defendants excepted.

On December 16th, following, defendants moved to dismiss the cause out of court on the ground that plaintiff having withdrawn the money paid into court under the plea of tender, he thereby accepted that sum in full satisfaction of the claim laid in the complaint. This motion appears to have been made not until a jury had been empannelled for the trial but immediately thereafter, and upon the admission in open court of tbe receipt of tbe money by plaintiff, and bis amendment of tbe complaint by reducing tbe claim therein asserted to tbe extent of tbe money so received. It does not appear, however, when tbe money was paid by tbe clerk to tbe plaintiff, further than at some time between October 12 and December 16, 1891. Tbe motion to dismiss was overruled and tbe defendants excepted; tbe trial proceeded and judgment was rendered in favor of plaintiff for tbe balance claimed.

We are of opinion that tbe motion to dismiss was seasonably made. It was certainly interposed upon tbe instant that tbe fact of tbe withdrawal of tbe money was made to appear formally in tbe cause and court, and for aught that appears to tbe contrary, tbe fund may not have been withdrawn until that time. Moreover, conceding that plaintiff received tbe money immediately on tbe granting of bis motion on October 12th, it may be that defendants either did not know tbe fact, or, knowing it, bad no opportunity to avail themselves of it until the case came on again on December 16th. And, beyond all this, we do not conceive that tbe delay shown, even bad defendants earlier knowledge and opportunity, was so unreasonable in itself, or when considered with reference totbe fact that a jury bad been empan-nelled to try tbe case, as to defeat tbe ultimate right to have tbe cause dismissed if the motion to that end was a meritorious one aside from tbe question óf delay.

Was there merit in tbe motion? Tbe fact that tbe plea of tender did not go to tbe whole of plaintiff’s demand can be of no consequence whatever against tbe motion. These pleas never go to tbe whole claim asserted in tbe complaint. If they did, no necessity for interposing them could ever arise, as of course the-plaintiff would always accept tbe sum tendered and tbe amount of costs accruing to time of tender. They, on tbe contrary, admit a part and only a part of tbe demand and are accompanied by tbe money necessary to discharge the part so admitted. Tbe defendant says in effect, “I owe you so much of what you claim, and here it is; tbe balance of your demand I do not owe, and I will defend against it.” It is manifestly immaterial upon what line tbe defense as to tbe residue of tbe claim may proceed; it may rest in payment, or in absence of obligation to pay in tbe first instance, or in a right to recoup against tbe demand items of damages arising from the- misperformance of tbe contract upon which tbe demand is based. In all cases tbe proposition of the plea is to pay tbe plaintiff tbe sum named in satisfaction of tbe whole claim advanced in the complaint, and if tbe proposition is accepted tbe result is complete liquidation of tbe demand, and tbis wholly irrespective of tbe grounds upon wbicb tbe defendant declines to pay and proposes to deny bis liability for tbe balance. If tbe defendants bere prior to tbe suit bad offered plaintiff $134.44 in full payment of all tbeir liabilities under tbe building contract and tbe plaintiff bad accepted tbe money, there of course could be no doubt but that be would thereby have lost all right he-might otherwise have bad to insist on tbe payment of a larger sum, however clear such right might originally have been, however frivolous may have been tbe grounds of defendant’s objection to payment of tbe whole demand, and whatever line of defense be may have proposed taking against tbe demand as a whole — whether by recoupment against it or otherwise. And as has been directly adjudged by tbis court tbe withdrawal by tbe plaintiff of money paid into court on a plea of tender, stands upon tbe same footing and involves tbe same consequences as tbe acceptance of a tender made before suit brought in full satisfaction of tbe demand. Tbe court, by Clopton, J. said: “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 received tbe amount in full satisfaction of bis claim. It is disembarrassed of tbe principle that a tender can not be made on condition that a reception of tbe money satisfies tbe creditor’s demand. Tbe object of tbe statute in requiring a plea of tender to be accompanied by a delivery of tbe money to tbe clerk of tbe court is, that it . . . may be paid to plaintiff whenever willing to accept it, and put an end to tbe litigation, or may be awarded to tbe party to whom it is ascertained to belong rightfully. — Frank v. Pickens, 69 Ala. 369. Though tbe money is produced and placed in tbe custody of tbe court, it remains tbe property of tbe defendant until either tbe plaintiff accepts it or the truth of tbe plea is established. . . . Where tbe plaintiff voluntarily accepts tbe money paid into court without contesting tbe sufficiency or truth of tbe plea, it thereby becomes bis property ; but its acceptance is upon tbe terms of the plea — that is in full satisfaction and extinguishment of bis claim. . . . He can not afterwards say that it was accepted only as a payment joro tanto.” And it was accordingly held that tbe withdrawal of the money by tbe plaintiff was a satisfaction of Ms entire demand, and entitled tbe defendant to have the action dismissed.—Hanson v. Todd, 95 Ala. 328.

The case just cited is sought to be distinguished from the present one, and it is not only insisted that the doctrine it declares can not apply where the defense as to the balance of plaintiff’s demand not tendered, is by way of recoupment, a proposition we have above held untenable, but also that the principle has no application here because the plea of defendants, which has been set out in full, is not a plea of tender. There are- several answers to this contention as it is now advanced. In the first place, the plea contains a prayer that it be taken and considered as tendering the sum named and accrued costs of suit to the plaintiff; and it was so considered and referred to throughout the case by court and counsel. If defective as such plea, it should have been demurred to, and its sufficiency should not have been confessed, according to the decision of this court in Hanson v. Todd, supra, by accepting the offer it presented. Moreover, the fact that there had been no tender before suit brought, did not, it would seem, deprive defendants of the right to tender the amount they conceived to be due, and accrued costs after suit brought, even had they neglected previous opportunity to make tender.—Moynahan v. Moore, 77 Am. Dec. 468, and notes; Burt v. Dodge, 13 Ohio, 131; Weaver v. Nugent, 13 Am. St. Rep. 792; Smith v. Anders, 21 Ala. 782. And certainly such tender may be first made by plea filed accompanied with the amount claimed to be due and accrued costs where a tender before suit could not be made because of the plaintiff’s absence from the State. Notes to Moynahan v. Moore, supra; Spoor v. Phillips, 27 Ala. 193; Trimble v. Williamson, 49 Ala. 525; Lehman, Durr & Co. v. Collins, 69 Ala. 127. And the failure of plaintiff to demur to the plea on that ground was a confession of the sufficiency of its aver-ments in respect of defendant’s lack of opportunity to make tender before suit brought. In other words, and in brief, the plaintiff has fully committed himself to the sufficiency of the plea as one of tender and he must abide the consequences of accepting the money paid into court under it.

The trial court erred .in overruling defendant’s motion to dismiss the suit. The other questions presented by this record need not be considered. The judgment is reversed, and a judgment will be here entered dismissing the case.

Beversed and rendered.  