Chesapeake Bay Distributing Co. v. Buck Distributing Co.

BELL, Judge. The sole issue on appeal is whether statements made by counsel for appellant to counsel for appellee constituted a pre-tender rejection of appellee’s offer to pay a judgment so as to render actual production of the amount an unnecessary formality. Chesapeake Bay Distributing Company (appellant) was awarded a judgment against Buck Distributing Company (appellee) in the amount of $71,496.50 on June 14, 1982. On July 13, 1982, counsel for Buck telephoned counsel for Chesapeake and expressed his client’s “readiness, willingness and ability to pay” the amount owed.

Counsel for Buck testified that he told Chesapeake’s counsel that he had a check for the amount of the judgment and requested instructions as to how the check should be made out and where it should be sent. Counsel for Chesapeake testified that he had replied that his client “planned to take an appeal of the matter” because he believed the amount of the judgment was insufficient in that the court allowed loss of profits only for the three years prior to suit. He denied having specifically told appellee’s counsel not to send the check and stated that he had no right to refuse or to accept the money as he was only trial counsel. Nevertheless no payment was made to Chesapeake’s counsel or into court.

Thirteen months later, after a decision adverse to Chesapeake on appeal, Buck’s counsel offered to send a check to Chesapeake’s counsel (who was a partner of original counsel) for the amount of the judgment plus one month’s interest. Counsel for Chesapeake said Buck should pay interest accumulated to the date of actual payment. It was agreed that Buck would send a check for the original judgment plus 30 days interest and that this would be accepted without prejudice to Chesapeake’s right to petition the court for the additional interest plus attorney’s fees. The check was then sent. ²¹³ There was a disagreement between counsel as to a formal letter setting forth the provisions of the oral non-waiver agreement.

Before this disagreement was resolved, Chesapeake secured new counsel, who wrote to Buck’s counsel about the non-receipt of the formal letter containing the non-waiver provisions and returned Buck’s check. Shortly thereafter, Chesapeake filed a writ of attachment at Maryland National Bank on Buck’s account. Buck’s counsel sent a letter to Chesapeake’s new counsel explaining the prior agreement and enclosing a new check for the amount of judgment plus 30 days interest, but this check was again returned. Buck filed a motion to quash the attachment on grounds that a tender was made on three separate occasions or in the alternative to release the funds attached as unnecessary for satisfaction of the judgment.

The court allowed the attachment in the amount of the original judgment of $71,496.50 plus 30 days interest of $587.40 for a total of $72,083.90, but quashed any attachment over that amount. In so holding, the court found that the July 13 statement by counsel for Chesapeake indicating an intent to appeal amounted to a “constructive rejection” of Buck’s proffered tender and therefore the strict requirement of producing the money was unnecessary. Chesapeake appeals from this determination. Appellant contends that the court erred in holding that the statements by Chesapeake’s counsel constituted an implied pre-tender rejection thereby rendering actual tender of money unnecessary, and further asserts that appellee was obligated to pay interest on the full amount of the judgment until paid or actually tendered.

Appellant argues, based on Shannon v. Howard Mutual Bldg. Ass’n of Balt., 36 Md. 383 (1872) and City of Balto. v. Hook, 62 Md. 371, 379 (1884), that tenders must be strictly construed, and that refusals must be “by express declaration or other equivalent act,” 36 Md. at 392 , and that in this case, there was no such refusal. ²¹⁴ Appellee concedes that there was no express declaration by counsel that he would “reject” any “tender”. Appellee argues, however, that there was substantial evidence from which the trial court could find that an “actual” tender was useless or that appellant obstructed or prevented the formal tender. Thus its obligation to pay the additional interest was terminated by the July 13 telephone conversation.

A tender is defined as “an offer to perform a condition or obligation coupled with the present ability of immediate performance, so that if it were not for the refusal of