Judge of Probate v. Runnells

21 A. 1020 | N.H. | 1890

If the presentation of the claim sought to be recovered may be regarded as a sufficient exhibition of it to the defendant, within the statutory requirement as interpreted in Little v. Little, 36 N.H. 224, there can nevertheless be no recovery against her in this proceeding, for want of compliance with the additional requirement of a legal demand of payment (G. L., c. 198, s. 1), which is personal in its nature, and must be made in such a way that the party upon whom it is made may immediately discharge himself by complying therewith. "In all ordinary cases," as is said in Whittier v. Johnson, 38 N.H. 164, "when a demand is necessary to be made in order to perfect a cause of action, it must be such that the party upon whom it is made may be able, if he sees fit, to comply with it at once. The person in whom the right to make the demand exists must be present, either himself or by his agent or attorney, and ready to accept what is called for." To the same effect is Phelps v. Gilchrist, 28 N.H. 266 (affirmed in Sanborn v. Buswell, 51 N.H. 573), where it is further said (p. 277) that "any mode of making the demand which precludes the party from availing himself of these rights is clearly insufficient;" and the same general rule is laid down in 3 Phil. Ev. (6th Am. ed.) 448. A demand by letter is therefore not sufficient, and much less if, as in this case, the amount demanded is not stated; nor was even this defect remedied by the subsequent verbal statement to the defendant's attorney, that the amount was "between nine and ten hundred dollars." To put the defendant on track of information was not enough. She was entitled to a specific demand with which she might immediately comply.

Judgment for the defendant.

CLARK, J., did not sit: the others concurred.