May v. Findley

66 So. 463, 189 Ala. 196, 1914 Ala. LEXIS 134

• Court: Supreme Court of Alabama
• Decided: November 7, 1914
• Status: Published

Opinion

ANDERSON, C. J.

We think that the weight of the evidence supports the complainant’s contention that a mistake of $100 was made in the note given to J. R. May as a part of the consideration for the land purchase, and as J. A. May stands in the shoes of the mortgagee, J. R. May, no claim of bona fine purchaser being presented, the complainant had to tender only the amount that was due and for. which the note and mortgage should have been given, and not the sum for which they were erroneously given.

It appears that the tender was made in bank notes, and which may not have been a legal tender if rejected on this ground, but it is evident from the evidence that it was rejected upon the sole ground that it was less than the amount claimed to be due, and this operated as a waiver as to the kind of money that was offered.—38 Cyc. 140; Seawell v. Henry, 6 Ala. 226.

The decree of the chancery court is affirmed.

Affirmed.

Mayfield, Somerville, and de Graffenried, JJ., concur.