Carpenter v. Bankers Health & Life Insurance

141 S.E. 327, 37 Ga. App. 642, 1928 Ga. App. LEXIS 548

• Court: Court of Appeals of Georgia
• Decided: January 14, 1928
• Docket: 18226
• Status: Published

Opinion

Jenkins, P. J.

1. The rule stated by this’court in Woodruff Machinery Mfg. Co. v. Griffin, 17 Ga. App. 529 (2) (87 S. E. 808), and followed in Securities Trust Co. v. Marshall, 30 Ga. App. 379, 382 (9) (118 S. E. 478), that, “conceding that under section 4494 of the Civil Code the proferred amendment setting up a tender, etc., was offered too late to relieve the defendant from the costs of the proceeding and to charge the plaintiff therewith, the defendant was, nevertheless, not precluded from setting up by amendment, after the first term, a tender of the property to the plaintiff, a tender of the reasonable hire therefor (or alleging that the same had no value for hire)', and from disclaiming title thereto,” must be understood to mean that a tender at a term subsequent to the first term must be made prior to an election by the plaintiff to take a money verdict. See, in this connection, Downs Motor Co. v. Colbert, 34 Ga. App. 542 (130 S. E. 592).

2. It appearing in the instant case that the defendant’s amendment tendering the property was made prior to any attempted election by the plaintiff to take a money verdict, the court did not err in allowing the same.

Judgment affirmed.

Stephens amd Bell, JJ., concur.