17 Vt. 105 | Vt. | 1843
The opinion of the court was delivered by
Though this note was payable in sap buckets or leather, at the option of the maker, yet a day certain was fixed, when it was to become payable. By a fair construction of the note, whether paid in buckets, or in leather, it must have been paid by the middle of February next following the date of the note. When a note is payable in a specific article on demand, a special demand is necessary before suit is brought; but when a day certain is fixed for payment, a special demand has never been held necessary.
The defendant also objects to the charge of the court. If the
The whole question raised on the charge is, as to what should be the effect, either of the want of a stamp upon the leather, or if stamped bad. In all other respects the charge was satisfactory. Every proper intendment is to be made to sustain a verdict; and it is the duty of the excepting party to show affirmatively that error intervened on the trial. If the leather was not sealed, it was the object of the defendant to transfer the ownership of the leather from himself to the plaintiff, in payment of his note, against the express prohibition of the statute. Will the court, in such case, lend the party its aid to carry such intention into effect ? The rule, as laid
If, then, the defendant could not have recovered in an action for leather sold, in contravention of the statute, it follows, that the court should not give effect to a tender, the object of which was to pass the title to the leather from the one to the other, in payment of a precedent debt.
The alternative of the charge of the court, that, if the jury found the leather sealed with the letter B, it could not avail the defendant, cannot admit of a question. If the defendant elected to pay his note in leather, the plaintiff had the right to require that it should be of a merchantable quality. Such must be taken to have been the intention of the parties.. This is well settled. If, then, the leather had been condemned by the leather-sealer, and stamped as bad, this would furnish evidence that the leather was not of such a quality as the defendant was bound to turn out, and could not operate to discharge the note.
The judgment of the county court is affirmed.