On Petition for Rehearing.
Gavin, J.Impressed not only with the ability, but with the earnestness with which counsel for appellee urge their petition for rehearing we have endeavored to give to the questions involved that further consideration which they demand, but are still unable to accede to the correctness of the positions assumed by counsel.
The note in suit was dated in 1878, and was due in twelve months. December 8, 1880, the following endorsement was entered upon it. “Interest on this note reduced to 8 per cent, from date, and time extended while the interest is kept paid to the present amount.”
It is now contended that by virtue of this endorse*528ment the time was so extended that the note was not due until appellee, by his tender, elected no longer to beep the loan, and that consequently no attorney fees chargeable to him could be incurred prior to such default.
It would be sufficient answer to this position to say that upon the original presentation of this cause no claim was advanced that by reason of this endorsement the debt was not due when the note went into the hands of Ayres & Jones, and that it is now too late for such contention to be heard. Passing that question and any others that might be raised as to the merits of this contention, and assuming that, as claimed by appellee, there was no default upon his part, and no maturing of the note so long as the interest was kept doAvn to the amount then due, the time of the extension had long passed by, and the note matured by reason of his failure to keep the interest down to that sum.
According to the computation of appellee’s counsel, attached to their original brief, the interest due December 8,1880, was $222.44. According to the same calculations the interest due July 31, 1886, was $224.17, and the amount due April 15, 1887, was $230.60.
Thus there was default in the payment of interest at least twice prior to the death of the decedent.
It is urged that since the eA'idence discloses but one subject of dispute prior to the tender, we should assume or infer that this Avas the only matter then 'in controversy. One objection to this position is that the evidence introduced does not purport to cover or include all that took place between the parties relative to the note before the tender. It shows, indeed, that there was a dispute about the $600.00, but it does not show that the controversy was limited to that point. *529Moreover, it does affirmatively appear that at the time of the trial there were other matters in dispute, notably, as to the rate of interest from its date to the time of the endorsement. So far as is made to appear by the evidence, the attorney’s fees may have been specifically demanded at the time of the tender. It may be possible that such fact, if true, being within the knowledge of the appellant, the jury might, from his failure to so prove, have inferred the nonexistence of the fact; but counsel require of us that we should go much further and declare as a matter of law that this was the case. We do not feel authorized so to do.
It is further contended that, because the evidence discloses no other disputed matter at that time, we should conclude that no services were rendered save those touching the $600.00 payment, and that the employment of the attorneys was limited to the adjustment of that matter alone. As to this proposition, like the other, the utmost which appellee could demand would be that the jury might thus conclude, while to sustain appellee’s position we must declare that this is the only inference fairly deducible from all the facts and circumstances of the case. We are, however, of opinion that it was at least fairly inferable that the note was in attorney’s hands generally for collection.
That, under the facts of this case, the insufficiency of the amount of the tender was not waived, we still think clear. In each of the cases cited to sustain the opposite contention (where the question involved was one of tender), save Lambert v. Miller, 38 N. J. Eq. 117, it was held that some objection to the tender was waived because the party had placed his refusal to accept it upon some other ground, or had done some act which prevented a formal and proper tender.
Here, the evidence is wholly silent as to whether or *530not any reason for the refusal was given. It simply shows that the offer of so much money was made and the offer declined.
Appellant is not shown to have done anything to mislead appellee or throw him off his guard; so far as appears, they were dealing with one another at arm’s length, each one upon his guard and each one standing upon his legal rights. If any different state of facts existed the evidence has not been produced to establish it.
Petition overruled.