Noyes v. Wyckoff

21 Citing cases

  1. Leonard v. Woodruff

    243 N.W. 252 (Mich. 1932)   Cited 6 times

    The letter of the bank to defendants contained certain conditions, and only stated that it was the belief of the bank that plaintiff would pay the draft. A tender, to be effective, must be without qualification or condition. Zells v. Stockwell, 171 Mich. 268, 270; Noyes v. Wyckoff, 114 N.Y. 204 ( 21 N.E. 158); United States v. World's Columbian Exposition, 56 Fed. 630; Irvin v. Gregory, 13 Gray (79 Mass.), 215. The tender was insufficient. Plaintiff claims that defendants had no right to exchange the stock for Guardian Detroit Union Group, Inc., a Michigan corporation, even if there was authority to exchange it for Union Commerce Group, a Delaware corporation, and the attempt to exchange it without plaintiff's consent amounted to conversion, whereby defendants became liable.

  2. Davies v. Dow

    80 Minn. 223 (Minn. 1900)   Cited 2 times

    Wells-Stone v. Grover, 7 N. D. 460. It was voidable only in a proceeding brought to annul it. Bean v. Scheffer, 68 Minn. 33. To extinguish the lien, the tender must appear to have been fairly made, that is to say, made in good faith, in the sense of inviting acceptance, and to have been made unconditionally — and not withdrawn (the time being reasonable) until acted upon. Tuthill v. Morris, 81 N.Y. 94; Moore v. Norman, 43 Minn. 428; Bank of Benson v. Hove, 45 Minn. 40; Shotwell v. Dennman, 1 N. J. L. 174; Potts v. Plaisted, 30 Mich. 149. The tender was not unconditional. Wood v. Hitchcock, 20 Wend. 47; Noyes v. Wyckoff, 114 N. Y. 204, 207; Tompkins v. Batie, 11 Neb. 147; Potter v. Douglass, 44 Conn. 541; Rosema v. Porter, 112 Mich. 13; Sutton v. Hawkins, 8 Car. P. 259; Hough v. May, 4 Ad. El. 954; Moore v. Norman, 52 Minn. 83. It was withdrawn before acted upon. Plaintiff did not disclose to defendant by what right or on whose behalf he made the tender.

  3. Lilienthal v. McCormick

    117 F. 89 (9th Cir. 1902)   Cited 12 times
    In Lilienthal v. McCormick, 117 F. 89, 54 C.C.A. 475, the Bank of Woodburn, in Oregon, was made a defendant by the complainants, and brought into the suit in the United States court, where it asked affirmative relief, by filing a cross-bill for the foreclosure of certain liens, thus attempting to litigate the question whether the complainants had any lien against certain property.

    The proofs should be clear that a tender was fairly made, and that it was absolute and unconditional. Loring v. Cooke, 3 Pick, 48, 50; Moore v. Norman, 43 Minn. 428, 434, 45 N.W. 857, 9 L.R.A. 55, 19 Am.St.Rep. 247; Perkins v. Beck, 4 Cranch, C.C. 68, Fed. Cas. No. 10,984; Thayer v. Brackett, 12 Mass. 450; Richardson v. Chemical Laboratory, 9 Metc. 42, 52; Rand v. Harris, 83 N.C. 486; Noyes v. Wyckoff, 114 N.Y. 204, 207, 21 N.E. 158. There was no legal tender in the offer contained in the letter.

  4. Schwab v. Roberts

    263 N.W. 19 (Iowa 1936)   Cited 7 times

    It is the well-settled rule in this and other states that a tender is not good unless made unconditionally. Brandt v. Chicago, R.I. P.R. Co., 26 Iowa 114; West v. Farmers Mut. Ins. Co., 117 Iowa 147, 90 N.W. 523; Simons v. Petersberger, 171 Iowa, 564, 151 N.W. 392; Steckel v. Selix, 198 Iowa 339, 197 N.W. 918; United States v. World's Columbian Exposition (C.C.) 56 F. 630; Noyes v. Wyckoff, 114 N.Y. 204, 21 N.E. 158; Tompkins v. Batie, 11 Neb. 147, 7 N.W. 747, 38 Am. Rep. 361. As disclosed by the discussion in the previous division of this opinion, it appears without dispute that the check in question was not tendered to appellant unconditionally.

  5. Union Bank Trust Co. v. Wieck

    29 P.2d 384 (Mont. 1934)   Cited 2 times

    In order that a tender may operate to discharge the mortgage lien, it must clearly appear that it was fairly made and that it was made unconditionally. (11 C.J. 79; Advance-Rumely Thresher Co. v. Hess, 85 Mont. 293, 279 P. 236; Anderson v. Uncle Sam Oil Co., 106 Kan. 483, 186 P. 198; Bly v. Pool, 60 Okla. 77, 159 P. 511; Pleasant v. Arizona Storage Distributing Co., 34 Ariz. 68, 267 P. 794; Harbaugh v. Ford Roofing Products Corp., (Mo.) 281 S.W. 686; Purdin v. Hancock, 67 Or. 164, 135 P. 515; Pittsburgh Plate Glass Co. v. Leary, 25 S.D. 256, 126 N.W. 271, Ann. Cas. 1912B, 928, 31 L.R.A. (n.s.) 746; Robins v. Mack etc. Truck Co., 107 N.J.L. 285, 153 A. 649; Noyes v. Wyckoff, 114 N.Y. 204, 21 N.E. 158; Valentini v. Gobbi, 60 Cal.App. 289, 212 P. 718; 26 R.C.L. 641; 62 C.J. 375.) Assuming that the tender was valid, where a subsequent mortgagee seeks affirmative relief in equity, he must do equity — either keep the tender good or pay off the first mortgage. This respondents did not do. ( Webb v. Citizens Nat. Bank, 70 Ind. App. 22, 115 N.E. 799; Werner v. Tuch, 127 N.Y. 217, 27 N.E. 845, 24 Am. St. Rep. 443; Kelley v. Clark, 23 Idaho, 1, 129 P. 921, Ann. Cas. 1914C, 665; First Nat. Bank v. Elam, 126 Okla. 93, 258 P. 892; Murray v. O'Brien, 56 Wn. 361, 105 P. 840, 28 L.R.A. (n.s.) 998; Hamilton v. Hamilton, 51 Mont. 509, 154 P. 717; Richman v. Bank of Perris, 102 Cal.App. 71, 282 P. 801; 25 R.C.L. 645.)

  6. Marianna Nat'l Farm Loan Ass'n v. Braswell

    116 So. 639 (Fla. 1928)   Cited 5 times

    While it is true, as this Court has said, that the doctrine of subrogation has been steadily expanding and growing in importance and extent in its application, and an agreement out of which subrogation arises and upon which it rests may be express or implied (Forman et al. v. First National Bank of Quincy, et al., 76 Fla. 48, 79 So.2d Rep. 742), yet the fundamentals of the doctrine do not change, and equity will not apply the principle of subrogation where to do so would deprive a party of a legal right. Boley v. Daniel, supra. And generally, before legal subrogation can be enforced, there must be a full satisfaction of the entire debt. Cason v. Westfall, 83 Tex. 26, 18 S.W. Rep. 668; Irvin v. Mutual Trust Co., 82 N.J. Eq. 629, 90 Atl. Rep. 274; Wyckoff v. Noyes, 36 N.J. Eq. 227; New Jersey Midland R. R. Co. v. Wortendyke, 27 N.J. Eq. 658; Musgrave v. Dickson, 172 Pa. St. 629, 33 Atl. Rep. 705, 51 Am. St. Rep. 765; Stuckman v. Roose, 147 Ind. 402, 46 N.E. Rep. 680; Jones on Collateral Securities, Secs. 513-522. In Cason et al. v. Westfall, supra, giving the reason for this rule, the Supreme Court of Texas said: "When his debt has been only partially paid, it would be unreasonable to hold that the third party who made such payment thereby acquired a precedence over him, or was even placed upon an equal footing, in reference to the security for the payment of the remainder of his debt.

  7. Atherton v. Tesch

    80 So. 832 (Ala. 1919)   Cited 14 times

    This statement of the law seems to be very generally supported by the authorities. Harris' Law of Subrogation, § 29; Sheldon on Subrogation, §§ 70, 71, 25, and 14; Gaskill v. Huffaker (Ky.) 49 S.W. 770; Wilkins v. Gibson, 113 Ga. 31, 38 S.E. 374, 84 Am. St. Rep. 204; Rec'rs of N.J., etc., Ry. v. Wortendyke, 27 N.J. Eq. 658; London, etc., Mortgage Co. v. Fitzgerald, 55 Minn. 71, 56 N.W. 464; Wyckoff v. Noyes, 36 N.J. Eq. 227; Hubbard v. Le Baron, 110 Iowa, 443, 81 N.W. 681; Appeal of Allegheny Nat. Bk. (Pa.) 7 A. 788; Browder v. Hill, 136 Fed. 821, 69 C.C.A. 499. Indeed, the principle does not seem to be controverted by counsel for appellant, but they insist that, as the mortgage was given to secure several notes falling due at various times, the mortgage as to the several notes is equivalent to so many successive mortgages. It appears without dispute that the mortgage was given to secure a single debt — that is, the purchase price of real estate, remaining unpaid — and the notes were executed for the convenience of the parties, for the proper distribution of said debts among those interested therein, and payable in installment periods, evidently for the convenience of the mortgagor.

  8. Jenks v. Thompson

    71 N.E. 266 (N.Y. 1904)   Cited 13 times
    In Jenks v. Thompson (179 N.Y. 20) the plaintiff, a carpenter, who was not familiar with this kind of scaffolding, had been at work upon a scaffold made of hemlock boards and which was unsafe because composed of that material.

    So that if there are any legal errors committed by the trial court the order appealed from must be sustained, whether they were noticed by that court or not, and judgment absolute must be directed against the appellant unless they are absolutely harmless. ( Mackay v. Lewis, 73 N.Y. 382; Noyes v. Wyckoff, 114 N.Y. 204, 206; Reed v. McConnell, 133 N.Y. 425, 430; Foster v. Bookwalter, 152 N.Y. 166; Bank of China v. Morse, 168 N.Y. 458, 483.) The appellant contends that the errors in excluding the foregoing evidence were harmless, for the reason that the trial court was required, as a matter of law, to dismiss the complaint upon the ground that the plaintiff, at the time of his injury, had full and complete knowledge of the risks to be incurred by working upon the scaffold erected by the defendant for his use, and, consequently, that he assumed the risks incident to such use.

  9. Bank of China, Etc., v. Morse

    168 N.Y. 458 (N.Y. 1901)   Cited 27 times

    The respondent may sustain the order by showing any legal error, whether noticed by the court below or not. If, in considering such an appeal, the court determine that there was error upon the trial requiring an affirmance of the order, judgment absolute must be given against the appellant. ( Mackay v. Lewis, 73 N.Y. 382; Noyes v. Wyckoff, 114 N.Y. 204, 206; Reed v. McConnell, 133 N.Y. 425, 430; Foster v. Bookwalter, 152 N.Y. 166.) We may, however, add that we discover no principle upon which the call for twenty shillings could be enforced under the circumstances disclosed in this action.

  10. Ferrea v. Tubbs

    125 Cal. 687 (Cal. 1899)   Cited 23 times

    Plaintiffs were not then entitled to a receipt in full from plaintiff for the judgment appealed from by plaintiff, and the demand made for a receipt to which plaintiff was not then entitled invalidated the tender. (Civ. Code, sec. 1494; Noyes v. Wyckoff , 114 N.Y. 207; Wood v. Hitchcock, 20 Wend. 47-49; Roosvelt v. Bullshead Bank, 45 Barb. 579, 583; Frost v. Yonkers Sav. Bank , 70 N.Y. 558; 26 Am. Rep. 627; Sanford v. Bulkley , 30 Conn. 344, 349; Cothran v. Scanlan , 34 Ga. 556; 25 Am. & Eng. Ency. of Law, 912.) The supreme court had jurisdiction of the judgment, and of any modification thereof, on motion, and application should have been made in this court.