113 Mass. 320 | Mass. | 1873
A person, who has bound himself to make a payment on a given day, is bound also to seek for his creditor on that day in order to make the payment, and the creditor is not bound to seek for him in order to demand payment. The jury were instructed in accordance with this rule, with the qualification, however, that, inasmuch as the written contract failed to provide as to the place and mode of payment, if the parties orally agreed that defendants should receive their payment at the plain»
It requires no citation of authorities to prove that it is in the power of the parties to a written contract to supply its omissions, or otherwise to modify it, by a subsequent oral agreement. And this is, in our opinion, the proper interpretation of the instruction given to the jury. There was evidence tending to show that, before the contract was executed, the defendants were notified that the plaintiffs’ office was the place at which they made their payments, and no question was made as to the sufficiency in law of the evidence to prove it to be the place. The case finds that the defendants were the first to refuse in express terms to go on under the contract. The answer filed by them shows that they gave various reasons for this refusal on their part, one of which, and the only one material to be considered here, was that two of the payments due from the plaintiffs were in arrear. Mo tender of the amount so due was made by the plaintiffs, and there was evidence tending to show that the defendants had not called at the plaintiffs’ office to collect the amount due on these two payments. If the jury were satisfied upon the evidence that the parties by mutual consent had adopted the practice of making their settlements at the plaintiffs’ office, and that the defendants had received all previous payments under the contract at that place, it was competent for the jury to find that there was an oral agreement, subsequent to the original contract, to that effect.
But, independently of any such subsequent contract, we think that if the plaintiffs had an established place of business, at which they kept their books and made their payments, and where they reasonably might expect their workmen and persons with whom they had contracts would call to receive their pay, a mere delay or neglect in making a payment elsewhere to the defendants, in the absence of any evidence of demand and refusal, would not amount to such a violation of contract on the part of the plaintiffs as to justify the defendants in a refusal to
