4 Ark. 532 | Ark. | 1842
By the Court,
During the trial, Farrington moved the court for instructions to the jury, which, though very general in terms and language, we understand to be, that, if they were satisfied, from the evidence, that the time and place of delivery had been specified and agreed upon by the parties, no demand of the corn, by Far-rington, was necessary to entitle him to a recovery, but, that Bradley must prove the payment of it. We have not deemed it necessary to state the testimony introduced, nor the other instructions given to the court, as neither can have any bearing upon the decision of the case.
The only question is, was a demaud necessary before action brought? The evidence did not determine as to the time or place of payment. Consequently, they remain to be fixed by the election of one party or the other, and the rights of each must be considered, with a due regard to the nature of the case. The creditor would be required to make the demand in the season to pay in farm produce, as such contracts are presumed to be in favor of the debtor. 5 Cozu. Rep. 516. A contract payable in portable specific articles, at a day certain, not at any specific place, are payable at the creditor’s residence. But “ not so as to specific articles which cannot attend the person of the debtor.” They are supposed to be at the debtor’s place of residence, and the creditor, therefore, must demand the payment. Farm produce is presumptively on a farm, and has locality attached to it. The court, in our opinion, clearly erred in the instruction that Farrington was not bound to prove a demand of the corn, before a right of action accrued to him.
Judgment reversed.
