(concurring in part, dissenting in part).
I concur with the majority’s disposition of the first issue, the purchase price of the townhouse; I dissent, however, on the prejudgment interest issue.
Whether prejudgment interest under SDCL 21-1-11 is appropriate is not in issue. The issue is limited to whether the trial court erroneously limited the amount of interest allowed because of a tender. The trial court relied on SDCL 20-5-18, quoted in the majority opinion. The trial court arrived at the following findings of fact and conclusions of law on this issue.
On May 26, 1981, defendant Beckman informed plaintiff that the total amount due for the townhouse was $202,195.93. Plaintiff, at that time, tendered a total payment of $172,839 to defendant Beck-man as complete payment for the townhouse.
Pursuant to the contract, plaintiff paid a total of $28,400 and tendered an additional amount of $144,339 (totalling $172,-739).
This tender was refused and the entire $172,739 returned to plaintiff on June 12, 1981.
SDCL 20-5-18 stops the running of interest on this amount from June 12, 1981.
As the Eighth Circuit Court of Appeals stated in Bauer v. Uniroyal Tire Co., 630 F.2d 1287, 1291 (8th Cir.1980):
The South Dakota Supreme Court has had little opportunity to interpret section 20-5-18 and its predecessors_ In order to stop the accruing of interest, a tender must be an “unconditional tender” which effectively deprives the stakeholder of dominion over the fund. (Citations omitted.)
It is noteworthy that the trial court did not find that the tender was conditioned in any manner. Indeed, the record does not disclose any evidence of a condition and the case is therefore clearly distinguishable from the cases so heavily relied upon by the majority.
In Pittsburgh Plate Glass v. Leary, 25 S.D. 256, 126 N.W. 271 (1910), the amount tendered was a sum equal to the value of the panes of glass that arrived unbroken, whereas creditor’s lien claim included the value of a broken pane. The tender of payment was, however, conditioned upon the delivery of a lien waiver. In American Fed. Sav. v. Mid-America Service, 329 N.W.2d 124 (S.D.1983), the tender was in an amount due on the notes and mortgage, less the prepayment penalty claimed due by the creditor. The tender was conditioned on delivery of a satisfaction of the mortgage. In Eberle v. McKeown, 83 S.D. 345, 159 N.W.2d 391 (1968), the amount tendered was for farm land rental plus the landlord’s share of government price support payment, which latter sum was in dispute. The . tendered check, however, bore notations that acceptance was “in full settlement for 1965 rent.” The fact that Dougherty’s tender of the $144,339 check was characterized in the trial court’s findings as a final payment or a total payment is immaterial to the application of the statute since it was unconditional. In Bauer, supra at 1292 (citations omitted), the Eighth Circuit noted that:
Courts have recognized that an actual deposit of or an unconditional offer to deposit the interpleader fund serves at least two purposes:
(1) it protects the claimants from the risk that the stakeholder or its surety will become insolvent ...; and (2) it prevents the stakeholder, who has no claim to the fund, from using the fund for his benefit and, thus, becoming unjustly enriched at the expense of the claimants who have a colorable interest in the fund[.]
The unconditional tender herein left defendants free to deposit the $144,339 check in the same manner as the $28,400 check had been deposited. Acceptance of the tender would not have precluded suit for the balance claimed due under the contract.
Let us take note that this was not a suit on a lease agreement or promissory note where the stipulated rental or the principal *593sum and interest rate were clearly set out. This lawsuit is on a contract which was revised so often that neither party’s claim as to the amount due agreed with the trial court’s final determination. As I read the majority opinion, the only way a debtor can make a successful tender when the sum owed is disputed, is to tender the full amount of the creditor’s demand. If this is true, why did the courts in Pittsburgh Plate Glass, supra, American Fed. Sav., supra, and Eberle, supra, wherein the various amounts tendered were less than the amounts creditors claimed, agonize over the issue of conditional tender. It would have been much easier to simply hold that because the tender was less than the amount claimed, it was insufficient to stop the running of prejudgment interest.
Looking at the issue in the cold light of reality, a creditor would rarely bring suit against a debtor who tendered the amount the creditor claimed due.* The impact of the decision therefore is to require the debtor to settle on a creditor’s term at peril of paying prejudgment interest on the entire sum. The import of the statute, on the other hand, is to permit the debtor to pay such amount as he concedes is due, leaving the parties to litigate only that which is in issue, the balance due, if any. Clearly the opinion emasculates the statute.
I would affirm the judgment of the trial court on both issues.
In Smith v. Widmann Hotel, 74 S.D. 118, 49 N.W.2d 301 (1951), it is obvious that the lawsuit was centered on breaking a lease on a building and that the tender of rentals during holdover was merely an ancillary issue.