11 Tenn. 457 | Tenn. | 1832
delivered the opinion of the court.
This action is brought upon a covenant, executed on the 23d February 1822, by the defendant, Rogers, to John Davis, for $1000, payable in good .merchantable pork, the price of the pork to be governed by articles of agreement dated the 18th of December last; which co-
To this declaration the defendant pleaded, that he resided in the county of Warren, and State of Tennessee, at the time the said covenant was executed, and has ever sinceresided in the said county and state, and the plaintiff failed to make any demand of the defendant at his residence, and give him notice of the time and place, or either, to pay him, the said plaintiff, the said pork in his declaration mentioned, &c.
To this plea the plaintiff demurred, which demurrer was overruled by the court. Upon the sufficiency of this plea, the only question raised at the bar, must depend. It is contended by the plaintiff, that both the contracts between the defendant and Davis, are to be taken together, as forming one contract, and that the one of the 18th day of December fixes the time and place of payment, and consequently the case is not within the act of 1807, ch. 95, sec. 1. The covenant of the 23d of February 1822, has no reference to the one of the 18th of December, for any other purpose than as indicating the rule by which the price of the pork was to be governed. It is anew and distinct contract, and as it does not contain any stipulation as to the place where the property was to be delivered, the defendant was entitled to the demand, or notice, prescribed in the act of 1807. But it is insisted, that this matter is not well pleaded, because it is not averred that the defendant had the pork ready at the time fixed for payment. No such averment was
We are of opinion that there was no error in the circuit court in overruling the demurrer in this case, and that the charge to the jury upon the issue, is substantially correct. Let the judgment be affirmed.
Judgment affirmed.