Bakeman v. Pooler
New York Supreme Court
Error from the Oswego common pleas. Bakeman sued Pooler in a justice’s court, and declared, among other things, on a promissory note made by the defendant for six dollars, dated 13th June, 1833, payable 30 days after date. To the count on the note, the defendant pleaded a tender, and brought the money into court.
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Error from the Oswego common pleas. Bakeman sued Pooler in a justice’s court, and declared, among other things, on a promissory note made by the defendant for six dollars, dated 13th June, 1833, payable 30 days after date. To the count on the note, the defendant pleaded a tender, and brought the money into court. The suit before the justice was commenced by the plaintiff in person, on the 24th July, 1833, at 50 minutes past six o’clock, P. M. The evidence to support the plea of tender was as follows: A witness testified that on the same 24th July, at jfive o’clock P. M., he, at the request of…
1Opinion of the Court
By the' Court,
Cowen, J.
The proof of the tender was defective. The witness had the money in his pocket, and asked the plaintiff if he would take it, telling him the money was ready for him; but it remained in the pocket of the witness. This was not enough, unless the plaintiff dispensed with its production by some positive act or declaration. Thomas v. Evans, 10 East, 101. 3 Black. Comm. 304, note 33. Douglas v. Patrick, 3 T. R. 683. The money was not produced; the witness told the plaintiff he then had it ready for him; but where it was—whether in his pocket, or at some other place near by—he…
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