44 Vt. 472 | Vt. | 1872
The opinion of the court was delivered by
The custom known to the plaintiff and practised by the defendants, would govern in respect to furnishing barrels, the same as if the instrument had been made in express terms according to the custom. The instrument, in connection with the custom, is construed to be a note for two hundred barrels of oil to be delivered at any time within three months, and to be taken in barrels to be furnished by the plaintiff, unless the defendants should choose to pay four hundred and fifty dollars in money, in lieu of the oil. The defendants did not elect to pay in money, and at the expiration of the time it was due in oil. The defendants had the whole time in which to elect whether they would pay in oil or money, and could pay either at any time during the whole time. They had no right to expect that the plaintiff would furnish barrels without notice at any time before the expiration of the time, for if he should do so, they might elect to pay in money, and the barrels not be wanted at all, or if they should leave the note to be paid in oil, they might not choose to make payment till the end of the time for making it. They had no right to expect him to furnish them at the expiration of the time, without notice that they should not pay in money, for they might elect then to pay in money and the barrels not be wanted. They did inform him that they intended to pay in oil, but upon the facts found, did not go so far as to take away their right to pay in
