Baldwin v. Farnsworth

10 Me. 414 | Me. | 1833

The opinion of the Court was delivered by

Weston J.

The jury have found, that the defendants had received before payment of the note was demanded, a spinner, answering the description therein set forth. It was not delivered at the place, or within the time, stipulated; but being acceptedjsubsequently, the jury were properly instructed, that the defendants thereby waived their right to have exacted strict performance.

There is in the note something peculiar with regard to the place of payment, inasmuch as more than one place was appointed. It may be understood that the defendants reserved to themselves the right to pay, either at the one place or the other, But if the note was made payable at either place, it would be incumbent on the defendants to show, that they had the money ready at one of them. Ruggles v. Patten, 8 Mass. 480; Foster v. Sharp, 4 Johns. 183; Wolcott v. Van Santmord, 17 Johns. 248. This they have not done. But something further seems to have been contemplated, than the right to pay at the places appointed. The plaintiff was to demand payment there. Payment was demanded of Farnsworth, personally, in his own barn-yard, which, as to him, must be considered a sufficient demand, as he made no objection, and intimated no readiness to pay in the house. Whether any thing more was necessary, in a joint and several promise, to put the defendants upon proof that the money was ready at the other dwellinghouse, may be questionable ; but it appearing that a demand was made upon the other defendant also, at the same time and place, that he made no objection to the place or manner of the demand, and that he gave to the plaintiff no notice that he was prepared to pay at his own dwellinghouse, we concur in opinion with the Judge below, that the plaintiff proved a sufficient demand.

The exceptions are overruled, and there must be judgment on the verdict.