Stakke v. Chapman

Citations

• 13 S.D. 269
• 83 N.W. 261
• 1900 S.D. LEXIS 140

Syllabus

<p>1. Comp. Laws, £ 3468, provides that an offer of performance shall he of no effect if the person making' it is not able and willing' to perform according to the offer. Section 3473 provides that an obligation for the payment of money is extinguished by an offer of payment if the amount is immediately deposited in the name of the creditor in a reputable bank, and notice thereof given to the creditor. Section 3469 provides that the money offered in payment need not be produced unless the offer is accepted. Defendant offered to pay plaintiff a larger sum than plaintiff afterwards obtained judgment for, if the latter would go with him to a bank near by, and on plaintiff’s i efusal be directed the bank to pay such sum to the plaintiff on the surrender of certain notes, but did not make a deposit in plaintiff's name. Held, not to show a tender and deposit necessary to relieve defendant from liability for costs in an action in which plaintiff recovered less than the sum offered.</p> <p>2. A judgment debtor is not entitled to have the judgment against him satisfied*on the payment of the amount of the judgment where the amount of the costs is not inserted therein, and he has made no motion to require the prevailing party to have the costs taxed, where prevailing party has not applied under Comp. Laws, 5197, to the clerk to insert the costs.</p>