Howard v. Miner, 20 Me. 325

Howard v. Miner

20 Me. 325 | Me. | 1841

*330The opinion of the Court was drawn up by

Shepley J.

On a contract for the delivery of specific articles, which are ponderous or cumbrous, when it is not designated in the contract, and there is nothing in the condition and situation of the parties to determine the place of delivery, it is the privthege of the creditor to name a reasonable and suitable one. And if the debtor be desirous of paying, he should request the creditor to appoint it, or deliver to him in person at a proper place. Yet he is not obliged to follow him out of the State or country to'do this. A reasonable effort to ascertain his residence and give him the notice, will be sufficient. If the creditor, being notified, refuses or neglects to appoint, or avoids and prevents the notice, the debtor may appoint the place. Co. Lit. 210, (b); Pother, part 2, c. 3, art. 4; Chip. on Con. art. 27; 2 Kent, 507; Aldrich v. Albee, ] Greenl. 120; Bixby v. Whitney, 5 Greenl. 192; Currier v. Currier, 2 N. H. R. 75; Slingerland v. Morse, 8 Johns. 474.

If the contract in this case is under the circumstances to be regarded as failing to designate the place of delivery, and the defendants as having used reasonable diligence to give the notice, they should have appointed a suitable place and have delivered the articles there.

When the intention of the parties as to the place of delivery can be collected from the contract and the circumstances proved in relation to it, the delivery should be made at such place, although it may not be precisely in the condition named in the contract. For instance, if the contract should designate a store, and it should be changed into a workshop and be occupied by the same person, there could be little doubt respecting the intention. The plaintiff formerly occupied a shop in Bangor, which had been tom down before the contract was made. It does not appear, that he had not continued to control the site, on which it stood ; and if he had, it might, after it had been ascertained, that he did not occupy any shop in the city, well be regarded as the place appointed in the contract. Whether the place be regarded as sufficiently ascertained by *331the contract or not, the defendants have not performed all their duty to enable them to make a good defence.

Although the instructions may not be entirely correct, our statute does not require the Court to grant a new trial, when it appears, that the verdict is correct.

Exceptions overruled.