Barker v. Jones

8 N.H. 413 | Superior Court of New Hampshire | 1836

Parker, J.

The first question is, what was the place of the performance of this contract ? This is indicated by the place where it purports to have been made, and by the facts showing the residence of the parties. The contract was made at Amherst, where the defendant resided, the plaintiff living at the time in Massachusetts, and afterwards in Connecticut. It could not have been in the contemplation of either of them, that the defendant was to deliver the clock in a different place from that in which he received it, and in a different government. It was not, then, to be performed at the residence of the plaintiff. Nor could it have been intended that the defendant should carry the clock about with him, to deliver at such place as he might happen to meet the plaintiff. The defendant was bound to perform at his own house. It must have been so understood.

The contract is not. as it has been argued, a contract to pay sixteen dollars, with liberty to the defendant to rescind it, and deliver the clock and pay the interest, but it is in the alternative. He has his election by the very terms of the contract.

It is incumbent on the plaintiff to show a breach of the contract ; and this being its character, has the plaintiff offered any evidence of a breach of it ? He has shown that he still holds the writing, and that is all. The defendant was not bound to seek him. All that he was bound to do was to hold himself ready to make his election, and perform at his own house. The plaintiff has not shown that the defendant was not so ready. He has shown no refusal, no neglect, no inability on the part of the defendant, to perform. He has not proved any readiness on his own part to receive the money, or the clock, at the place of the performance ; but without this readiness the defendant was not bound to do any thing. The defendant might well wait the plaintiff's demand ; and the plaintiff not having shown that he made a demand, or that the defendant was unable to comply with it had he done so, has shown no breach of the contract. It may be presumed that the defendant was ready at his house to comply with the terms of his contract, until there is some evidence to the contrary.

Judgment for the defendant.