Wordin v. Bemis

33 Conn. 216

• Court: Supreme Court of Connecticut
• Decided: February 15, 1866
• Status: Published

Opinion

McCurdy, J.

The amount at stake in this case is small, but as a matter of practice it is important that the rule should be settled.

The language of the statute is direct and express. “ The plaintiff, unless he shall recover a greater sum than that named in the offer of the defendant, shall recover no cost accruing after notice.” Here he did recover a greater sum than the amount offered. The obvious meaning must prevail unless there is some insuperable objection.

The defendants say that the recovery was only for freight and the sum offered -was greater than the amount of freight then due. They therefore insist either that no interest should be allowed on the amount then due, or that the offer should be considered as carrying interest from the time it was made ; that otherwise injustice would be done and the object of the law evaded. Such a .provision might be very proper but it is not contained in the statute. To extend the law by construction, even if allowable, would be attended with serious difficulties. The statute is a general one, embracing actions of tort as well as of contract, and the rule must be uniform. A judgment is entire. In cases of contract it would be inconvenient and in suits for torts it might be impossible to ascertain what portion of a verdict or judgment rendered under the term “ damages ” was given on account of interest.

The rule contended. for would in many cases be unjust. The offer when not accepted is considered as withdrawn, and the defendant need not keep the money on hand as in a tender, but may use it at his pleasure. Again, he might at the commencement of a suit make an offer, not to pay the money as required in a tender, but to lot the plaintiff take a judgment at the session of the court long after the offer for the sum due at the time of the offer, and the plaintiff would lose the intervening interest. The conditions and effect of an offer under the statute are so different from those of a tender at the common law that the principles in relation to the latter have little bearing on the case before us.

The offer can not be presumed to include future interest. It is for a definite sum, and a court would not be justified in enlarging it and so changing the engagement of the party.

If the statute is imperfect, so that its object, the enabling of a party to buy his peace, can not be obtained without his running the risk in some cases of paying too much, the legislature may correct the evil.

We think the judgment of the superior court was manifestly erroneous.

In this opinion' Hinman, C. J., concurred. Butler and Carpenter, Js., dissented.