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06/15/95 LOTTIE MCLEAN v. GENE YOST

June 15, 1995

LOTTIE MCLEAN, PLAINTIFF-APPELLANT,
v.
GENE YOST, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Sangamon County. No. 92L19. Honorable Sue E. Myerscough, Judge Presiding.

As Corrected July 19, 1995.

Justices: Honorable Carl A. Lund, J. Honorable Robert J. Steigmann, J. Honorable John TO McCULLOUGH, J. Justice Lund delivered the opinion of the court: Steigmann and McCULLOUGH, JJ., concur.

The opinion of the court was delivered by: Lund

JUSTICE LUND delivered the opinion of the court:

This is a case in which defense counsel, in a personal injury action, made a supposed tender under the provisions of section 5-126 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 5-126) (now 735 ILCS 5/5-126 (West 1992)) to settle for an amount of $18,000. No money was deposited with the court. Plaintiff refused, went to trial, and the jury delivered a verdict in defendant's favor. Now defense counsel's "tender" became a major problem because by motion for judgment n.o.v., plaintiff renewed her contention (made previously in a motion for summary judgment and motions for directed verdict) that the tender effectively admitted liability. Historically, tender was treated as admission of liability. See Miller v. Gable (1889), 30 Ill. App. 578.

The present statute provides:

"Whoever owes another unliquidated damages or demands arising out of a contract may at any time, before or after suit is brought, tender what he or she shall conceive sufficient amends for the injury done or to pay the unliquidated damages or demands; and if suit has been commenced, also the costs of suit up to the time of making the tender. If it appears that the sum tendered was sufficient amends for the injury done or to pay the damages, and if suit has been commenced was also sufficient to pay the costs of suit up to the time of making the tender, the plaintiff shall not be allowed to recover any costs incurred after the tender, but shall be liable to the defendant for the defendant's costs incurred after that time." 735 ILCS 5/5-126 (West 1992).

Defense counsel included the following with a letter of September 1, 1992:

"TENDER

RE: Lottie McLean v. Gene Yost

Case No.: 92-L-19

Date: September 1, 1992

Pursuant to Code of Civil Procedure Section 5-126, S.H.A. Chapter 110, Paragraph 5-126 (1992 pp) tender is hereby made to the Plaintiff of the single sum of eighteen thousand ($18,000.00) as sufficient amends for both ...


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