On Rehearing.
Both sides have filed motions for rehearing. We have decided to overrule appellant’s motion, and to sustain that of appellees, and will briefly indicate our reasons.
[8] In the original opinion we held that the court erred in peremptorily instructing the jury to return a verdict for appellee bank, in so far as it included interest upon the amount tendered by appellant, and that ' the judgment should be reformed so as to exclude such interest. We are now convinced that this was error. To justify that conclusion, it would be necessary to hold that, under the undisputed facts, appellant had made a valid and unconditional tender of the full amount due the bank on the indebtedness which was secured by a pledge lien on the cotton. A closer scrutiny of the facts of record convinces us that we cannot justly make this conclusion.
There seems to be no dispute that appellant tendered the correct amount of the secured debt, and we have no doubt that the tender was valid as to the medium of payment. However, we think the evidence raised an issue of fact for the determination of the jury as to whether or not the tender made by appellant was unconditional. The testimony of appellant himself leaves it very doubtful whether he made the tender without condition and for the sole purpose of releasing the lien on the property or securing its possession. He was interrogated at length, as a witness, upon this issue, and he nowhere stated that he offered to pay the bank the full amount of such debt, with interest, leaving the disputed item of $258.29 for future adjustment or litigation. Indeed his testimony is susceptible of the inference that he made this tender only upon condition that the bank would waive or surrender its claim to the remaining item. The testimony of Mr. Hemphill is to the effect that appellant contested the bank’s right to the $258.-29, and he denied that appellant was willing to pay the whole amount, less such item. His testimony is to the effect that appellant ten-, dered the check in full payment of the entire indebtedness, and that he refused to accept it for the bank in full settlement. Indeed, Mr. Hemphill stated that his sole reason for refusing to accept the check was that it did not represent the full amount due the bank, and that he so apprised appellant. In this state of the evidence, we think the question was one of fact and a disputed issue. In view of the probability of another trial, we will, for the guidance of the trial court, state the rules of law which we regard as relevant to the above question.
[9] The general rule is that, in order to stop the running of interest, the debtor must tender the entire sum due. If he should tender less the creditor is justified in refusing the tender, and if the ultimate fact be established that the amount offered was insufficient interest will not be abated. Schwantkowsky v. Dykowsky (Tex. Civ. App.) 132 S. W. 373; Barreda v. Merchants’ Nat. Bank (Tex. Civ. App.) 206 S. W. 726; California State Life Ins. Co. v. Elliott (Tex. Civ. App.) 193 S. W. 1096; 38 Cyc. 137; 22 Cyc. 1557; 5 A. L. R. 1230, note Sec. IV.
This rule, however, does not obtain in a case where a debtor owes two or more distinct and separate debts, especially where one of the demands is secured by a mortgage or pledge of property, which the debtor wishes to redeem or to secure a release of the lien. In such instances the debtor may make a tender of payment of the secured debt without reference to the unsecured claims; but the offer must be unconditional. It cannot lawfully be conditioned upon the surrender by the creditor of his right to claim the remaining demands. 7 Cyc. 88 E. 1, 2; 38 Cyc. 140, A. 5, B, 1; Hunt on Tender, §§ 200, 201.
If the evidence should be the same on another trial, these legal principles will be applicable to an appropriate submission of the issue.
Upon the motion of appellant, we think it sufficient to say that the court properly instructed a verdict for the item of $258.29 for the reasons indicated in the original opinion. It may be added that appellant’s own testimony is to the effect that, with full knowledge of the terms and conditions of the *991offer, he authorized the hank to sell the cotton to Ellis & Co. This authority included, in our opinion, the right of the bant to make the adjustment with the purchasers for the shortage in weight as shown by the Brownwood Compress Certificates. This transaction was but the final adjustment with the purchasers upon the question of weights which was substantially authorized by appellant, and the bank was entitled to reimbursement. The fact that appellant subsequently questioned its authority can have no effect, in view of his own testimony as to that which he authorized to be done in his behalf.
The former judgment of this court will be set aside in so far as it reformed the judgment below so as to exclude the interest on the tender made by appellant, but the judgment will be reversed and the cause remanded for the trial of that issue. In all other respects the judgment will be affirmed.
Reversed and remanded in part, and in part affirmed.