
    Francis D. Bailey, Resp’t, v. County of Buchanan, State of Missouri, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 8, 1889.)
    
    Bonds — Tender of payment sufficient to stop interest.
    The obligor of a bond, having the option to redeem, has the right to demand, as a condition of payment, the surrender of the bond and of all the coupons in the holder’s possession, including those past due _ and detached, and after a tender of the amount due and refusal to surrender the past due coupons interest will cease to run upon the bond.
    Appeal from order of general term, New York superior court, reversing judgment entered on decision of judge at special term.
    
      James W. Perry, for app’lt; Henry Parsons, for resp’t.
    
      
       Reversing 8 N. Y. State Rep., 145.
    
   Earl, J.

The defendant, on the 1st day of July, 1869, made •and issued a large number of bonds each for the payment to the St. Louis and St. Joseph Railroad Company or bearer of $1,000 on the 1st day of July, 1889, with interest payable semi-annu.ally at the rate of ten per cent per annum, on presentation of the coupons thereto attached at the Bank of America in the city -of New York, with the right however, at the option of the defendant, to redeem the bonds at any time after ten years from their date. Some time prior to the 1st day of July, 1883, the plaintiff’s assignee became the owner of ten of such bonds with the unmatured coupons thereto attached, and on the 1st day of July, 1883, he detached the coupons falling due on and prior to that day and presented them for payment, and they were not paid. Subsequently, on the 7th day oí July, 1883, the defendant duly exercised its option to redeem the bonds, and in the same month deposited the money in the Bank of America for their payment, and notified him that the money was there for the payment of the bonds and the interest thereon to August first, and that it was ready to pay the bonds and all the interest to that date upon the surrender of the bonds and the coupons.

The holder was willing to take payment of the bonds and the interest thereon to August 1st, and to surrender the bonds and unmatured coupons, but he did not present for payment, and was unwilling to surrender the past due coupons. Subsequently the defendant paid the bonds and the coupons falling due on and prior to July 1st, and after January 1,1884, the holder transferred the coupons falling due January 1st to the plaintiff, who then commenced this action to recover the amount due thereon. At the trial term, the court held that the tender of payment made in July, 1883, was sufficient to stop the running of interest upon the bonds, and that the plaintiff could only recover the interest for the month of July. Upon appeal by the plaintiff to the general term, the court reversed the judgment, holding that the defendant-had not the right, at the time of such tender as a condition of payment, to demand the surrender of the coupons then past due, and that therefore the tender was not good, and that the plaintiff was entitled to recover the full amount of interest falling due January 1st, as if no tender had been made.

The plaintiff took the coupons after their maturity and with notice of the facts affecting them in the hands of his assignor, and hence his position for the maintenance of this action is no better than would have been occupied by his assignor if he had brought this action.

The sole question for our determination then is, whether the defendant could, as a condition of its tender and payment in July, 1883, rightfully demand the surrender of the bonds and all the coupons then held by the assignor of the plaintiff. It was held, at the general term, that the coupons past due and detached from the bonds at the time' of the tender were independent negotiable instruments, and that the defendant, therefore, had no right to demand their surrender for payment as a condition of the payment of the bonds, and that the tender was not good because it was not an unqualified offer to pay the bonds and the interest thereon for the month of July. We are of opinion that the learned general term fell into error. It is true that past due coupons, payable to bearer, when detached from the bonds, are, for many purposes, independent, separate instruments. They may be negotiated, and may be sued upon by the holder without the production of the bonds. Murray v. Lardner, 2 Wall., 110; Kenosha v. Lamson, 9 id., 477; City of Lexington v. Butler, 14 id., 282 ; Clark v. Iowa City, 20 id., 583 ; Amy v. Dubuque, 98 U. S., 470; Evertson v. The National Bank, 66 N. Y., 14; McClelland v. Norfolk Southern R. R. Co., 110 id., 469; 18 N. Y. State Rep., 344.

But the coupons nevertheless always have some relation to the bonds. Their force and effect and character may be determined by reference to the bonds. They are secured by the same mortgage, and although unsealed are specialities like the bonds, and are governed by the same statute of limitations which is applicable to the bonds. Until negotiated or used in some way they serve no independent purpose, and while they are in the hands of the holder they remain mere incidents of the bonds, and have no greater or other force or effect than the stipulation for the payment of interest contained in the bonds ; and while they remain in the. ownership and possession of the owner and holder of the bonds it can make no difference whether they are attached to or detached from the bonds, as they are then mere evidence of the indebtedness for the interest stipulated in the bonds.'

It is not disputed that one liable to pay money secured by a written instrument has the right as the condition of tender and payment to demand the surrender of the instrument which is the evidence of his debt, and thus if the coupons which had matured on the 1st of July, 1883, had remained attached to the bonds, the defendant would-have had the undeniable right to demand as a condition of their payment the surrender of the bonds and all the coupons. It could not have been obliged to make payment of a part of its debt, leaving a portion thereof unpaid and to be discharged by an independent transaction. It is a reasonable and consistent rule to hold that the defendant, at the time of its tender, owed the plaintiff’s assignor upon each bond but one debt, and that was the amount of the bond with the interest thereon. Its obligation would have been precisely the same if no coupons had been executed. It had the right to tender the payment of the entire debt, and to demand the surrender of all the securities by which it was evidenced. The tender was, therefore, sufficient and stopped the running of interest.

The order of the general term should be reversed, and judgment of the trial term affirmed, with costs.

All concur.  