
    Phelps v. Kathron et al.
    
    Tender; eiwect ov plea. A plea of tender admits the plaintiff’s right to recover to the extent of the tender, and a judgment for a less amount -will he held erroneous.
    
      Appeal from Winneshiek Circuit Court,
    
    Monday, December 12.
    Action upon a promissory note commenced before a justice of tbe peace. Tbe defendants, in tbe justice’s court, pleaded a set-off and a tender of $5.00. Judgment was rendered for plaintiff for an amount greater than the tender. Defendants appealed to the circuit court, and after appeal made another tender of $20. Upon a trial to a jury there was a verdict for $4.75 in favor of defendant, 'who remitted the amount recovered by the verdict, and thereupon judgment was rendered against plaintiff for costs. Plaintiff appeals.
    
      L. Bullís for the appellant.
    
      B. F. Gooley for the appellees.
   Beck, J.

A motion for a new trial upon the ground that the verdict was contrary to the evidence was overruled. The motion should have been sustained. Upon the pleadings plaintiff was entitled to recover. A plea of tender admits the plaintiff’s right to recover to the extent of the tender. Brayton v. The County of Delaware, 16 Iowa, 45; Johnson v. Twiggs, 4 G. Greene, 97; Frink & Co. v. Coe, id. 555.

The verdict being against this admission of the pleadings should have been set aside. The remittitur of the amount of the verdict in defendants’ favor does not cure the error. The verdict should have been for, at least, the amount tendered in favor of plaintiff. But tlie judgment upon the verdict after the remittitur is for defendant, which is deafly contrary to the admissions of the pleadings.

Reversed.  