The delivery by plaintiff and acceptance by defendant of the $1,383, and $120 checks in response to the court's decree does not, in my opinion, invoke the rule relative to keeping a tender good. Each check was accepted. Its receipt under the facts of this case constituted a conditional payment of the obligation, the condition being that it be paid upon presentation to the bank upon which it was drawn. Had the check been presented to the bank one year after its date and been paid, no attempt to cash it in the meantime having been made, the payee would not be entitled to interest for the year upon a showing that at some time in the interim the balance in the maker's account was less than the amount of the check.
"Payment by bill or check becomes absolute payment of the debt when the check is paid on presentation. On such payment of the check, the debt is deemed to have been discharged from the time the check was given." 21 R.C.L. 70, Sec. 69, and cases there cited; Sardeson v. Menage, 41 Minn. 314, 43 N.W. 66; Tonnar v. Wade, 153 Miss. 722, 121 So. 156.
In the case here the check was never presented for payment. The maker of the check testified that had it been presented at any time before trial it would have been paid. Admitting that at times between the date of the check and the date of trial, he had overdrawn his account, he testified that he had made arrangements with the bank to take care of them. No other witness testified as to such matter. *Page 364 His evidence stands uncontradicted, unless the letter to Attorney Moyle, quoted in the opinion of Chief Justice MOFFAT, constitutes such contradiction. This letter was written in response to an inquiry by Mr. Moyle as to what checks were outstanding; as to whether he would be willing to make new checks in lieu of them; and as to whether he could make payment of the balance due on the community property settlement. It was not in answer to a demand for payment of the outstanding checks or an inquiry as to whether they would be paid if presented. True, plaintiff did state in such letter that if he made out new checks he would have to pay in installments since he did not then have sufficient money in the bank to cover the entire amount. I am, however, of the opinion that these statements are not such as to require the court to find that had the checks been presented for payment at that time or subsequently they would not have been honored by the bank. The trial court made a specific finding to the effect that at any time between the date of the checks and the date of trial the checks would have been paid by the bank upon presentation. Such finding is supported by plaintiff's testimony. I am, consequently, of the opinion that the judgment of the trial court, as it applies to interest on amount represented by the checks in question, should not be disturbed.
The case nevertheless should be remanded to the trial court with instructions to compute and allow interest on the amount represented by the value of one-half of the community property as indicated in the opinion of Mr. Chief Justice MOFFAT. Under the very limited partial victory of defendant, however, I think each party should stand his own costs.