you said $100, or will say $100, and pay costs up to judgment, it would be accepted, rather than proceed with the litigation. Please let me hear from you at once upon the subject.

"Yours truly,

R. K. WILLIAMS."

Thereupon the defendant's attorney sent the following: "OGDEN, UTAH, November 24, 1886.

"R. K. Williams, Esq., City-DEAR SIR: I am in receipt of yours declining the offer of $75.00, or which I understand to decline it, but think we would rather proceed than to accept your terms. Have nothing further to say upon the subject.

"Yours truly,

N. TANNER, JR."

The plaintiff's attorney then sent the following notice: "[Title of court and cause.] The defendant and its attorney are hereby notified to confess judgment for $75 and costs. * Served upon plaintiff on the twentieth instant; is accepted, and the plaintiff will proceed to take judgment.

[Signed] "WILLIAMS & WHITE, Attorneys for Plaintiff.”

Some explanatory words are evidently omitted from this notice. Indorsed on the notice was the following:

"Service by copy acknowledged this November 29, 1886, but, the offer having been rejected, we do not now consent to judgment against us, but will proceed to trial.

[Signed] "N. TANNER, JR., Attorney for Defendant."

On the same day the attorney for the defendant wrote to plaintiff's attorneys as follows:

"OGDEN, UTAH, November 29, 1886. "Messrs. Williams & White, City-GENTLEMEN: As stated in my note of the 24th, I understand yours of a prior date to decline the offer made you. The institution does not wish to renew it; hence, when you are ready we will proceed with the case.

"N. TANNER, JR."

This correspondence all took place before the case was reached for trial in the justice's court, and they were the basis of the judgment of the district court. The offer made by the defendant in the first note was manifestly under section 780 of the Civil Code, applicable to Justices' Court, Laws 1884, p. 297. The section reads as follows: "Sec. 780. If the defendant, at any time before trial, offer in writing to allow judgment to be taken against him for a specified sum, the plaintiff may immediately have judgment therefor, with the costs then accrued; but if he does not accept such offer before the trial, and fail to recover in the action a sum in excess of the offer, he cannot recover costs, but costs must be adjudged against him from the time of the offer, and, if he recover, be deducted from his recovery. But the offer and failure to accept it cannot be given in evidence to affect the recovery otherwise than as to costs."

The object of this section is to authorize a compromise judgment. Its terms should be complied with, in order to authorize the entry of the judgment. It requires an offer on the one side, and an acceptance on the other side "before the trial." The offer and acceptance "before the trial" give the court its power to grant the judgment. The compromise character of the offer made by the defendant was fully recognized by the plaintiff in his reply thereto, when he says: "I have received a copy of your offer to compromise." An offer to compromise is not an admission that anything is actually due. A payment into court is an admission of an indebtedness to the extent of the payment. It is a satisfaction of the debt to the extent of the amount paid. The payment is absolute and unconditional, and does not depend upon any acceptance or rejection by the other party to make it binding. A tender likewise admits the existence and validity of the debt, unless the tender be made as an expressed measure of compromise. It is not contended by the plaintiff that it was a tender of the amount due, which is a necessity, if it is to be classed as a tender. The plaintiff, in his reply, claimed that it was not for the amount due, for he declared that, had it been for a larger amount, he might have accepted it; but even then he would

not have accepted, because the amount he named was all that was due, but the acceptance would have been made, "rather than proceed with the litigation." The offer, therefore, contained none of the elements of a tender.

As it could not have been a payment into court, nor a tender, but simply an offer to compromise, it must be treated as an offer to compromise, and especially as the kind of offer specified in the section referred to. Upon the receipt of the offer made by defendant, the plaintiff beyond doubt had the right to immediately have judgment therefor. It is likewise evident, from the plain language of the section, that he could have delayed his acceptance until just "before the trial;" but this, until just before the trial, presupposed that in the mean time there had been no withdrawal or rejection of the offer. As to whether there could have been a withdrawal or not is immaterial, as there was nothing in the case that could be treated as a withdrawal.

The defendant recognized the letter of the plaintiff of the twenty-third of November as a rejection, and acted upon it as such, and notified the plaintiff thereof, and that thereafter he would not consent to judgment. The sole question, therefore, is whether there was a rejection of the offer. The right of the plaintiff to reject the offer is not, and cannot be, denied. It is a general rule as to all agreements that assent of both parties is necessary, and that the party to whom an offer is made may reject at his pleasure; and thereafter there can be no agreement unless the offer be renewed. There is nothing in the section that prohibits the application of the general rule to this case. The express authority given in the section is that "plaintiff may immediately have judgment." Inferentially, only, can it be said to leave the offer open until the trial. But the authority to accept is a privilege offered, which he may decline. The right to reject exists as long as the right to accept exists. Rejection means not only a failure to accept, but it means more. It means a repudiation of the offer.

The letter of the plaintiff, in reply to the offer of the defendant to allow judgment for $75, says: "Had you said one hundred, or will say one hundred, and pay costs up to

judgment, it would be accepted." Such a statement is equivalent to a rejection of the offer as made. It is a settled rule that an acceptance of any proposition, to be valid and binding, must be unconditional. If a condition be affixed by the party to whom the offer is made, or any modification or change in the offer be required, it constitutes in law a rejection of the offer. Eskridge v. Glover, 26 Amer. Dec., 344, and note; 1 Pars. Cont., 400; Railway Co. v. Rolling-Mill Co., 7 Sup. Ct. Rep., 168; 1 Benj. Sales, sec. 38 et seq.; Newm. Sales, sec. 29, notes 18, 19. We deem it, therefore, to have been error for the district court to allow a judgment to have been entered for the amount of the offer, and based upon the offer. The acceptance by the plaintiff after the offer had been rejected, is not allowable. Newm. Sales, sec. 29, notes 20, 21.

The plaintiff objects, however, to our consideration of the question of the making and rejection of the offer. The ground of the objection is that a judgment rendered on the offer, its acceptance, and affidavits, cannot be reviewed on motion for a new trial. The counsel evidently misconceives the purport of the language quoted from Hayne on New Trials. The orders referred to by that author were such as were made upon "the investigation of collateral matters not put in issue by the pleadings." Hayne, New Trials, p. 25, sec. 1. In the case at bar it is the judgment itself that is under review, and not an intermediate order based upon the collateral matters not put in issue by the pleadings; and the motion for a new trial raises the question as to the authority of the court to give the judgment upon the evidence before it.

For the reasons which we have stated, the order and judgment of the district court are reversed, and the cause remanded, to be proceeded with in accordance with this opinion.

ZANE, C. J., concurred.

HENDERSON, J., (dissenting.)

I cannot concurr with my associates in their view of this In the first place, I think the letter of plaintiff, re

case.

plying to the defendant's offer of judgment, cannot be fairly construed as a rejection. Its fair import is that the plaintiff is considering doubtfully the offer, and that, if the offer had been or would be made more favorable to the plaintiff it would solve the doubt. But granting that it was a full and absolute refusal, in terms to accept the offer made, I do not concur in their construction of the statute. Of course, the offer of judgment, under the statute, is not a tender of money, or a tender and payment into court, but it is a tender of judgment, and I think its analogies are to be found in the rules relating to tenders, rather than in those relating to offers and acceptances in sales of personal property in commercial transactions. Coghlan v. Railroad Co., 32 Fed. Rep., 317. In the latter cases no relation already exists between the parties, and the question to be determined is when a contract relation does or does not exist. In such cases an offer once rejected ceases to have any force whatever, and the person offering can claim nothing whatever under it, while an offer of judgment grows out of relations already existing between the parties. It is a proceeding in a cause then pending between them, and under which the plaintiff claims, and continues to claim, certain rights, and may subject the plaintiffs to penalties. It is the exercise of a right given by statute in view of the already existing relations between the parties. I think the statute was intended to apply to a class of cases not provided for by the laws in force without it, in relation to tenders, and in the same direction. Under section 912, p. 317, Laws 1884, a defendant, before action brought, might tender the amount due, and, if it was refused, keep the tender good, and plead it in defense of interest and costs, when an action was brought; accompanying the plea with the money thus tendered, (Curiac v. Abadie, 25 Cal., 502; 2 Pars. Cont., 7th Ed., 772;) and the sum so tendered and paid into court would become the property of the plaintiff, and might be withdrawn by him at any time, (Murray v. Bethune, 1 Wend., 196; Yee Seng v. Corbitt, 9 Fed. Rep., 431.)

I am unable, upon examination, to find any statute in this territory authorizing a defendant to make tender after