#### Johannah Moynahan v. Stewart Moore.

■Where a tender, sufficient in amount to discharge a mechanic’s lien for the repair of personal [property, was made on condition that the property be delivered up, and the only objection made to the tender was that the amount was insufficient; — iTéi^That the tender was not vitiated by the condition.

One who makes a sufficient tender in such case, and then brings replevin for the property, is not obliged, in order to keep the tender good, to bring the money tendered into court. The lien being discharged by the tender, the mechanic can thereafter only roly upon the personal responsibility of his employer.

*Hewrd' Oeíób&i' 9lh.*

*Decided November 14th.*

Error to Wayne Circuit. The case is sufficiently stated in the opinion.

*II. A. Morrow,*for plaintiff in error,

cited in support of his position that the tender was sufficient, 4 *Man. & Gr.*574; *Peak’s Gas.*88, 179; 8 *M. & W.*298; *34 Me.*283; 3 *Bing. N. C.*869; 8 *Barb.*408.

*L.*Bishop, for defendant in error:

The tender being conditional was not good: — 3 *Camp.*70; 4 *Camp.*136; 6 *Taunt.*336; 20 *Wend.*47; 8 *Barb.*408; 23 *Barb.*490; 2 *C. & P.*50, 51; 6 *C. & P.*237; 3 *Bing.*304. But if good, it must be kept good by bringing the money into court: —3 *Cow.*336; 12 *Wend.*393; 14 *Wend.*221; 23 *Wend.*341; 2 *Hill,*538; 12 *Mass.*450; 3 *Pick.*48; 24 *Pick.*168; 24 *Vt.*536; 25 *Penn. St. R.*354; 2 *Gilm.*679; 12 *Ill.*86; 16 *Ill.*262; 10 *E. L.**10*& E.*513; 12 *La. An. R.*266; 1 *E. D. Smith,*197; 16 *N. Y.*582; 21 *Ill.*578; 1 *H. Black.*24; 1 *B. & P.*382; 3 *B. & P.*603; 6 *Taunt.*336.

Martin Ch. J. :

The plaintiff employed the defendant to repair a carriage, and the defendant retained the carriage under a mechanic’s lien for the amount due him for making such repairs. To obtain possession of the property the plaintiff tendered, as the jury finds, sufficient to discharge the lien. This tender necessarily operated to release the property, and the plaintiff was entitled to immediate possession of it. That such would be the effect of an unconditional tender is not doubted; but as the tender in this case was made upon condition that the carriag’e should be delivered up, it is thought that it has not such effect. A tender made to procure the possession of property can hardly be called conditional because it is accompanied with a demand for the property. But it does not appear that any objection was made to the tender by the defendant, except for insufficiency — he demanding more than the sum offered; and as the jury find that sufficient was tendered, the tender was good, even were the strictest rule to prevail; upon the well established principle, that an objection made at the time of tender precludes all others, and if that be not well grounded, the tender will be held good.

It is claimed that the want of the money in court obviates the effect of the tender. Were this an action by Moore to recover compensation for the repairs, the want of the money in court would render the tender nugatory; as the effect of tender in such cases is to stay interest and relieve from costs, and therefore the party making the tender must always have the money within reach of his creditor. But in this case, the tender having once operated to discharge the lien, it was gone forever, and nothing could revive it. The reasons which require the *11money to be brought; into court do not apply in such a case. By refusing to receive the money tendered, the defendant lost his lien, and can only rely upon the per* sonal liability of the plaintiff.

The judgment is reversed, and a new trial granted.

The other Justices concurred.