Opinion
2 Div. 387.
March 27, 1928. Rehearing Denied April 17, 1928.
Appeal from Circuit Court, Sumter County; Benj. F. Elmore, Judge.
Action on promissory note by John R. Bell against F. I. Derby. Judgment for plaintiff, and defendant appeals. Affirmed.
Certiorari denied by Supreme Court in Derby v. Bell, 217 Ala. 529, 117 So. 8.
Thos. F. Seale, of Livingston, for appellant.
If the instrument is by its terms payable at a special place, and the person primarily liable is able and willing to pay it there at maturity, such ability and willingness are equivalent to tender of payment on his part. Code 1923, § 9096; Moore v. Alton, 196 Ala. 158, 71 So. 681. Having had funds at the appointed place and time to pay the note and the note was not duly presented, defendant was entitled to be exonerated from payment of damages and costs. Clark v. Moses, 50 Ala. 326; K. C. M. B. v. Cobb, 100 Ala. 228, 13 So. 938. Actual tender was dispensed with when the attorney for plaintiff refused to accept payment as offered. Root v. Johnson, 99 Ala. 90, 10 So. 293; Odum v. Rutledge, 94 Ala. 488, 10 So. 222. If defendant did all in his power to pay the debt, and the plaintiff refused to take it, he was not required to pay the actual money in the court. Gayle Motor Co. v. Gray-Acree Motor Co., 206 Ala. 586, 90 So. 334.
Patton Patton, of Carrollton, for appellee.
Though a note be payable at a fixed place, presentment there is not a condition precedent or necessary to fix the liability of the maker. Connerly v. Planters' Ins. Co., 66 Ala. 432; Rudulph v. Brewer, 96 Ala. 189, 11 So. 314. Defendant must have kept the funds in the bank of payment at all times and have brought same into court in order to avail of the defense sought. Wallace v. M'Connell, 13 Pet. 136, 10 L.Ed. 95; Irvine v. Withers, 1 Stew. 234; K. C. M. B. v. Cobb, 100 Ala. 228, 13 So. 938; Park v. Wiley, 67 Ala. 310; Frank v. Pickens, 69 Ala. 369; Comm. F. I. Co. v. Allen, 80 Ala. 571, 1 So. 202; Lyons v. Jacoway, 205 Ala. 456, 88 So. 599; Saunders v. McDonough, 210 Ala. 208, 97 So. 622.
Appellee was the owner of a negotiable promissory note, executed by appellant, and payable on the 1st day of January, 1924, at the Merchants' Bank Trust Company of Tuscaloosa, Ala. The note was not presented at the time and place of its payment, when and where appellant had funds on deposit to pay same, with instructions to said bank to pay it when presented. Upon appellee's agent and attorney demanding payment of the amount of the note, plus interest to date of demand and attorney's fees for collection, at another place, and at a date later than the date of maturity of the note, appellant offered to pay the amount of the face of the note, with interest to January 1, 1924, but no more. This offer was refused; whereupon appellant withdrew from the Merchants' Bank Trust Company of Tuscaloosa the funds which had been left there, and made no further offer or tender. Suit was brought by appellee upon the note, which resulted, in a trial before the judge without a jury, in a judgment in appellee's favor for the full amount of the note, plus interest to the day of trial and an amount (which was agreed upon, only as being reasonable in the event of recovery, between the parties) for attorney's fees for collection of the note. The defendant in judgment brings this appeal.
An examination of the cases which have dealt with the question raised by pleadings and evidence in this case leads us to the conclusion that appellant's plea of tender, in order for it to have prevailed, would have had to allege that he "had funds at the time and place to meet the demand, and had kept the money ready at all times, and now brings it into court." K. C., M. B. R. R. Co. v. Cobb, 100 Ala. 228, 13 So. 938.
Having the money on hand at the Merchants' Bank Trust Company on January 1, 1924, with which to pay the note and interest to that date, was sufficient as a tender, at that time and place. Code 1923, § 9096. The statement of appellee's agent and attorney, at a later time and at another place, that appellee would not accept the amount of the note with interest to January 1, 1924, operated to excuse appellant from actually tendering the money. Root v. Johnson, 99 Ala. 90, 10 So. 293. But the failure of appellant to bring the amount of his tender into court robbed him of whatever advantage he had gained prior to the time of suit. Frank v. Pickens, 69 Ala. 369; Rice v. Garnett, 17 Ala. App. 239, 84 So. 557.
It results that the judgment rendered by the trial court should be, and is, affirmed.
Affirmed.