
    Gray v. Graham.
    Tender: effect of. Where the defendant in an action avers a tender, the plaintiff-is entitled to judgment for the amount thereof.
    
      Appeal from, Clinton Circuit Court.
    
    Thursday, July 25.
    Action upon contract for a balance due upon the sale of a lot, at an alleged price of $400, $120 of which price was paid at the time of contract. The plaintiff averred a tender of a deed. The defendant, by answer, admitted the contract 'of sale, but alleged that-the contract price was $200; that he paid down $120, as alleged by plaintiff, and averred that, on the 7th day. of September, 1870, he tendered plaintiff $112.03, the balance due, in full payment, and that he had always been ready and still is ready to pay said sum ; the defendant, in one of his answers, denied any tender of a deed. There was a jury trial; verdict and judgment for defendant. The plaintiff appeals.
    
      JD. Gra/y for the appellant.
    
      Walter I. Ha/yes and J. F. MeGui/re for the appellee.
   Cole, J.

The defendant filed an answer at the September term, 1870, in which he expressly admitted the tender'of the deed for the lot in controversy, as averred by tbe plaintiff. In tbis answer tbe defendant also averred tbe tender of tbe balance be admitted to be due, and that' “ be now brings tbe same into court to be paid to plaintiff if she will accept tbe same.” At tbe same time tbe defendant filed an answer and cross-petition (no question arises upon tbe latter), in which be denied each and every allegation of plaintiff’s petition, and averred tbe tender as before, and that be “now brings tbe same into court to be paid to tbe plaintiff if she will accept tbe same, cmd convey said lot to the defmda/ntP At tbe November term, 1810, tbe defendant filed an amended answer in which, besides tbe general denial as above, be also “ denies that plaintiff ever tendered to him a correct deed for tbe lot in question, properly stamped and executed,” and avers tbe tender by himself of tbe balance due, as before, and “ that tbe defendant has always been ready, and still is ready to pay tbe said sum of money to tbe plaintiff' in payment as aforesaid.”

Upon the trial there was some conflict of evidence respecting the tender of the deed by the plaintiff, and the authority of the agent by whom the tender was made. the court instructed the jury that, in order for the plaintiff to recover, she must show by the evidence that she tendered the deed, before suit brought, by an authorized agent. In view of the pleadings and the oft repeated averment by defendant of bis tender, readiness to pay, and the bringing of the money into court, tbis instruction was erroneous. The plaintiff was entitled to recover the amount of the tender by defendant, at least. Phelps v. Kathron et ad., 30 Iowa, 231, and cases cited.

Tbe appellee’s counsel, whose abstract we accept as correct, raises a question as to tbe time and manner of excepting to tbe instruction. But if plaintiff’s counsel was too late in stating bis exception, which was after tbe jury bad retired, be has nevertheless properly availed himself of tbe same point by bis motion for a new trial because tbe verdict was contrary to the pleadings, and tender by defendant’; to the overruling of which by the court he did duly except.

Reversed.  