14 Iowa 530 | Iowa | 1863
The plea of tender, as set up by the defendant, was sufficiently specific to enable him to interpose his defense. Under the plea of tender, with' an averment of readiness and willingness to perform, the defendant could introduce evidence to show that the brick were counted out and set apart for the use of the promisee.
The main point o£ controversy appears to have been in the court below as to whether it was the duty of the defendant, under the terms of the contract, to have the brick due the plaintiff counted out and set apart and ready for delivery at his kiln.
In contracts for labor or property, in which there is no time fixed for the delivery or performance, the promisee cannot have his claim converted into a money demand until a demand of performance has been made and the maker refuses, or a reasonable time is allowed for performance. Rev., § 1806. Where, however, the time and place of performance are fixed in the contract, it has been held that if the debtor makes a tender of the specific articles he has promised, and properly designates and sets them apart at the time and place stipulated, and the creditor is not there to receive, or refuses to accept the property, the debt is thereby discharged, and the right of property in the article thus designated and set apart passes to the creditor. See Games v. Manning, 2 G. Greene, 254, and cases cited.
How far the custom of the country in relation to counting out and setting apart bricks from' a brick-kiln, should govern the rights of the parties in cases of this character, we do not think it material now to consider from the view we take of this case. It is evident the defendant did not so set apart the number of brick due the plaintiff as to pass the title of the property, or right of possession from him. If it is conceded that under the case made out by defendant, from the custom, &c., he was not required to have the brick counted and set apart and ready for plaintiff
Affirmed.
