Kiefert v. Maple Valley Mutual Home Fire Insurance

148 N.W. 864, 158 Wis. 340, 1914 Wisc. LEXIS 306

• Court: Wisconsin Supreme Court
• Decided: October 6, 1914
• Status: Published

Opinion

WiK'snow, O. J.

The appellant claims that he was entitled to interest from the date of the adjustment and a full bill of costs.

This claim must be overruled, because (1) the jury found on sufficient evidence not only that the loss was only $240, but also that the parties agreed to adjust the loss at that sum at the meeting early in December; (2) the insurance company had sixty days after receiving notice within which to pay the loss; (3) the evidence shows without dispute that within that period the defendant offered the plaintiff a good check for $240 and has kept the offer good; (4) the offer of a check constitutes a good tender so as to stop interest if no objection be made to it at the time on the ground that it is not legal tender, but'it is refused on some other ground, as for instance that it is not enough. 38 Cyc. 147; Mitchell v. Vermont C. M. Co. 67 N. Y. 280.

It is true that the tender was not definitely pleaded in the answer, but the evidence came in without objection and the facts appear from the plaintiff’s own evidence, and in such case the pleadings may be considered as amended in furtherance of justice.

By the Court. — Judgment affirmed.