#### CORA E. WYATT and L. R. WYATT v. W. S. WILSON and A. H. MARTIN.

(Filed 31 March, 1910.)

Judgment, Tender of — Court Costs — Insufficiency of Tender.

In a justice’s court judgment was rendered against two defendants, from which one only appealed, and, pending the appeal, tendered in cash as a satisfaction of the judgment as to himself a less sum than the amount of the'justice’s judgment, hut more than that ultimately rendered in the Superior Court against him. Assuming that such an offer of compromise of this case under Revisal, sec. 860, can be made, it was not made in behalf of both defendants, not commensurate with plaintiff’s right of judgment against both, and insufficient to tax plaintiff with cost in the Superior Court.

Appeal by defendant Wilson from W. B. Allen, J., at October Term, 1909, of Waee.

The facts are stated in the opinion of the Court.

Holding & Bunn for plaintiffs.

Jones & Bailey for defendants.

Walker, J.

This action was brought in a court of a justice of the peace, by the plaintiffs against the defendants, W. S. Wilson and A. H. Martin, trading as the Wilson Lumber Company, to recover the sum of $117.85, which the plaintiffs allege was the balance due for rent of a house and lot. The justice, after hearing the case, rendered judgment in favor of the plaintiffs and against the defendants, W. S. Wilson and A. H. Martin, for the-sum of $106.09, and the defendant W. S. Wilson appealed to the Superior Court and j>aid the justice’s fees for the return of the appeal, but before said appeal was perfected the defendant W. S. Wilson, by his attorney, tendered in writing to the plaintiffs the sum of $100.25 in cash and the amount of the costs in the justice’s court, which tender was offered in full settlement of the judgment recovered by plaintiffs against both the defendants. This tender the plaintiffs refused. The defendant A. H. Martin did not appeal from the judgment of the *277justice, and ma.de no tender of any kind. Tbe appeal taken by tbe defendant Wilson was duly, docketed in tbe Superior Court and tbe action was tried, as against bim, at October Term, 1909. Tbe jury, under tbe evidence and tbe instructions of tbe judge, rendered a verdict for tbe plaintiffs upon tbe issue submitted to tbem, as to tbe amount of tbe indebtedness, for tbe sum of $90, witb interest on tbe same from 1 January, 1908, wbieb amount is, of course, less tban tbe tender made by tbe defendant W. S. Wilson, as above stated. A. H. Martin did not appear in person, or by counsel, in tbe Superior Court, but tbe action was tried against Wilson alone. After tbe jury bad rendered tbeir verdict, tbe defendant W. S. Wilson, by bis counsel, tendered a judgment in favor of tbe plaintiffs and against tbe defendant W. S. Wilson for tbe said amount of $90 and tbe costs wbieb bad accrued in tbe justice’s court, but taxed tbe plaintiffs witb tbe costs of tbe Superior Court. Tbe plaintiffs objected to said judgment, and tendered a judgment for tbe amount of tbe verdict witb tbe costs of both courts, and tbis judgment was signed by tbe presiding judge and entered on tbe record. Tbe defendant W. S. Wilson excepted to said judgment and appealed to tbis Court.

Assuming tbat an offer of compromise can be made in a case of tbis kind, under Eevisal, sec. 860, tbe tender must be of a judgment against all tbe defendants, and must be made in behalf of all of tbem, and tbis construction of tbe statute is strikingly illustrated by tbe facts of tbis case. If tbe plaintiffs bad been required to accept tbe tender of judgment made by tbe defendant, tbey would bave lost tbe difference between tbe amount of sucb tender and tbe amount of tbe judgment tbey bad recovered against Martin, who did not appeal. The defendant Wilson did not tender a judgment at all, but so much money in cash, which was less tban the judgment recovered in the justice’s court. Tbis tender was clearly not in accordance witb tbe said section. It was said in Williamson v. Canal Co., 84 N. C., 630, tbat “a plaintiff’s right is to bave judgment upon tbe submitted offer in tbe pending action, and consequently against all whom be has sued, and unless tbe offer is commensurate witb this right, it is unavailing under tbe act.” Tbis case seems to be directly in point and fully answers tbe contention of tbe defendant W. S. Wilson, who has appealed from tbe judgment rendered in tbe court below.

No error.