Dumas v. Hardwick

19 Tex. 238 | Tex. | 1857

Wheeler, J.

There is a distinction between notes like the present, for the payment of money, with the privilege of discharging the obligation in something else, and contracts for the payment of the debt absolutely in specific articles. The distinction was taken by this Court in Chivaillier v. Burford, (1 Tex. B. 503,) and Baker v. Todd, (6 Id. 273,) where it was field, that a promise to pay a sum of money at a specified time, with a stipulation that it may be discharged in some specified articles, becomes an absolute promise to pay money, if payment be not made in the article specified on the day appointed. The rule is well illustrated by the case of Plowman v. Riddle, (7 Ala. R. 775,) where the suit was upon a note for the payment of a sum of money at a specified time, with the following stipulation : “ which may be discharged in good leather,” specifying the kinds and prices of the leather. The defendant pleaded that, at the maturity of the note, he was ready at his tan yard, and had then, and ever since, a sufficient quantity of the kinds of leather mentioned in the note, to have discharged it according to its terms; and averred a readiness and willingness to deliver the leather. The Court held that the effect of the contract was not a promise to deliver leather of the quantity specified at the given time; but that the contract was for money, with a privilege to the defendant to pay in leather, and that to avail himself of that privilege, he should have given notice to the plaintiff of his intention to do so. Having omitted to give such notice until after the pay-day of the note, the contract became absolute ¡for money. The right of election was for the benefit of the defendant; and it was his duty, if he elected to deliver the leather in discharge of the contract, to give notice to ihe’plaintiff of Ms readiness and willingness to do so. When sued for the money he could not defeat the action, by proving the existence of a fact which was peculiarly within his own knowledge. The defendant was under no obligation to deliver the leather; and it being a condition inserted for his benefit, it was necessary that he should have given notice of his election to discharge the obligation in leather in due time ; and the plea was held bad for not averring such notice. This case is cited and its authority fully approved by Mr. Eaton in his Supplement to Chipman on Contracts, (p. 221.) The only difference between that case and the present is, that here a place was specified for the delivery of the article. But in that case, the understanding doubtless was, and the Court so treated the contract, that the leather was to be delivered at the defendant’s tan yard. The naming of a place of delivery does not affect the principle governing the contract. It was entirely optional with the payee whether he would pay in the article specified or not. It was his privilege, if he saw fit to exercise it; but whether he would do so or not, was known only to himself until the day of payment arrived. If he intended to avail himself of his privilege, it was but reasonable and just that he should signify his intention to the - payee in time for the latter to attend at the place to receive the articles. It might require preparation on his part, and it would be unreasonable to require him to make preparations and go to receive the articles, before he was advised, and when it was wholly uncertain and optional with the debtor whether he would deliver them or not. It is in accordance with the dictates of justice and fair dealing, that the debtor should give notice of his intention, if he meant to deliver the articles, in order that the creditor should not be put to needless expense and trouble. The plea does not aver such notice, and we are of opinion, therefore, that it was rightly adjudged insufficient. The judgment is affirmed.

Judgment affirmed.