And with respect to the second attempt, Pavlow argues that turning the funds over to the court clerk did not constitute a relinquishment of the funds to him because the court clerk was acting as Jensen's agent, and not in the clerk's official capacity, when the clerk agreed to deliver the check to Pavlow after he signed a release. See id. (stating that delivery of the check to the district clerk, acting as the agent of the tenderer to deliver the check rather than in an official capacity, was not a relinquishment of all control); Dunn v. Ligon, 430 S.W.2d 704, 708 (Tex.Civ.App.-Corpus Christi 1968, no writ) (holding there was no actual tender of payments because district clerk was not the "duly authorized agent" of the insured to receive payments on his behalf). Pavlow argues that the court's clerk was not authorized to act as his agent and, therefore, could not accept the funds on his behalf.
Mr. U. Inc. v. Mobil Oil Corp., 197 Neb. 612, 617, 249 N.W.2d 909, 912 (1977) (citations omitted). See also Action Development Corp. v. Woodall, 21 N.C. App. 567, 571, 205 S.E.2d 592, 596 (1974); Dunn v. Ligon, 430 S.W.2d 704, 707-08 (Tex.Civ.App. 1968); Zion's Properties, Inc. v. Holt, 538 P.2d 1319, 1322 (Utah 1975). In the instant case, plaintiffs' letter states that "Peter will shortly pay the outstanding balance * * *."
By way of dicta, the court observed in Hudgins that a judgment creditor would unquestionably be entitled to insist on cash or certified funds, and we fully agree. See Noyes v. Habilitation Resources, Inc., 49 Cal.App.3d 910, 123 Cal.Rptr. 261 (1975); Dunn v. Ligon, 430 S.W.2d 704 (Tex.Civ.App. 1968); and Altenau v. Masterson, 161 Misc. 433, 292 N.Y.S. 299 (1936). We therefore reverse for entry of a judgment compensating appellants for the interest they did not receive on the funds during the time it took the personal check to clear.
Tex.Civ.Prac. Rem. Code Ann. § 31.002 (Vernon 1986). We have held in related circumstances that the trial court has the power to issue a writ of mandamus to compel a court clerk to perform the ministerial act under Rule 627 of issuing execution on judgment on timely application of the successful party or his attorney, in the absence of a supersedeas bond. Dunn v. Ligon, 430 S.W.2d 704, 707 (Tex.Civ.App. — Corpus Christi 1968, no writ). Likewise, in the court of appeals, mandamus will lie to compel the trial court to aid a judgment creditor to obtain satisfaction of a judgment rendered in that court. See Anderson v. Lykes, 761 S.W.2d 831 (Tex.App.-Dallas 1988, original proceeding) (application for a turnover order under Tex.Civ.Prac. Rem. Code Ann. § 31.002(b)(1) (Vernon 1986)).
There are authorities holding that when a contract requires the payment or tender of money, cash is required and a check will not constitute legal tender or payment unless there is an agreement to accept it as payment. Fillion v. David Silvers Co., 709 S.W.2d 240 (Tex.App. — Houston [14th Dist.] 1986, writ ref'd n.r.e.); Dunn v. Ligon, 430 S.W.2d 704 (Tex.Civ.App. — Corpus Christi 1968, no writ); Pitts v. G.F.C. Corporation, 228 S.W.2d 261 (Tex.Civ.App. — Dallas 1950, no writ); Ward v. Tadlock, 183 S.W.2d 739 (Tex.Civ.App. — Fort Worth 1944, no writ); Renchie v. John Hancock Mutual Life Ins. Co., 174 S.W.2d 87 (Tex.Civ.App. — Fort Worth 1943, no writ); Jefferson Standard Life Ins. Co. v. Lindsey, 94 S.W.2d 549 (Tex.Civ.App. — Eastland 1936, writ dism'd); Friends in Need Society v. Peterson, 9 S.W.2d 1110 (Tex.Civ.App. — Austin 1928, writ ref'd). Other authorities have recognized a rule that a check may constitute legal tender if it is shown that the drawer had sufficient funds in the bank to pay it and that the check would be paid when, in the usual course of business, it is presented to the drawee bank. Waggoner Bank Trust Co. v. Gamer Co., 113 Tex. 5, 213 S.W. 927 (1919); Moore v. Copeland, 478 S.W.2d 573 (Tex.Civ.App. — Corpus Christi 1972, writ ref'd n.r.e.); Cornelius v. Cook, 213 S.W.2d 767 (Tex.Civ.App. — Eastland 1948, no writ); Tatum v. Fulton, 218 S.W. 108
Consequently, we regard as inapplicable decisions cited by defendant to the effect that a custom of insurance companies to pay judgments by draft does not make delivery of such a draft legal tender. See Baucum v. Great American Ins. Co., 370 S.W.2d 863 (Tex.Sup. 1963); Dunn v. Ligon, 430 S.W.2d 704 (Tex.Civ.App., Corpus Christi 1968, no writ); Home Ins. Indem. Co. v. Gutierrez, 409 S.W.2d 450 (Tex.Civ.App., Corpus Christi 1968, writ ref'd, n.r.e.). Tex.Bus. Com. Code Ann. § 2.
Therefore, May was entitled to receive the money upon the date of that event, and the interest began to run from that day. Since the value of May's stock was determinable and fixed as of that date, and could not go up or down thereafter, the companies should have legally tendered that amount of money (to May or into court) in order to stop the running of interest. Home Insurance Company v. Gutierrez, 409 S.W.2d 450 (Tex.Civ.App. — Corpus Christi 1966); Hoot v. Quality Ready-Mix Company, 438 S.W.2d 421 (Tex.Civ.App.-Corpus Christi 1969); Dunn v. Ligon, 430 S.W.2d 704 (Tex.Civ.App.-Corpus Christi 1968). The appellee companies contend that May never did surrender his stock and therefore they had no obligation to pay him.