¶1The opinion of the court was delivered by
¶2"We think no valid tender was made. It seems all that was done was that the defendant remarked to the plaintiff, as the latter was passing by him, “ I want to tender you this money before Mr. Dodge (at the same time holding in his hands thirty-five dollars and fifty cents), for labor you have done for me,” but the plaintiff kept along with his team, making no reply. The defendant named no sum which he wished to tender, nor the amount be held in his hands, although it appeared subsequently that he had *579thirty-five dollars and fifty cents in his hands. It was for the defendant to make out affirmatively that he made a legal tender. The plaintiff was under no obligation to stop his team to make inquiries, or to have a sum of money tendered him; and unless the defendant specified the amount which he wished to tender, the plaintiff could not determine as to the sufficiency of the sum, and no refusal by the plaintiff to receive any specific sum of money, could be predicated upon such an offer as the case shows was made. All that the case legally shows, is an intention on the part of the defendant, or rather a willingness, to make a tender. If no tender was made at the time suggested, there is no occasion to inquire about its being kept good.
¶3The judgment of the county court is reversed, and judgment for the plaintiff, for the sum reported by the auditors, and interest.