5 Wend. 187 | N.Y. Sup. Ct. | 1830
By the Court,
The court below erred in admitting that paroi evidence which was given of an agreement between the parties, made at or before the execution of the written contract between them, as to the place at which the articles mentioned in the receipt of the defendant were to be delivered by him.
If the articles to be delivered by the defendant are to be considered of a portable kind, then, by the established legal construction of such a contract, he was bound to deliver them at the residence of the plaintiff. If they are ponderous articles, then the plaintiff had a right to appoint the place oí delivery, and it was the business of the defendant to seek him before the day and ascertain the place. This is the rule laid dowm by Lord Coke, Coke Litt. 210, b. He says, “If the condition of a bond be to deliver 20 quarters of wheat or 20 loads of timber, the obligor is not bound to car
Mr. Chipman, in his Treatise on Contracts, p. 25 to 29, considers this the established rule. He says, “ If a note of hand be given for cattle, grain, or other portable articles, and no place of payment be designated in the note, the creditor’s residence is the place of payment.” This rule has its qualifications ; as where a note is payable on demand in the articles of his trade, by a merchant or manufacturer, the store of the merchant or the shop of the tradesman is the place where payment must be demanded and delivery may be made; and a note payable in farm produce on demand, should be demanded and is payable at the farm of the debtor; 4 Wendell, 379 ; 5 Cowen, 516 ; 2 Kent's Comm. 400; and the doctrine is also subject to another qualification, that the creditor cannot appoint an unreasonable place, and one so remote from the debtor that the expense of transportation might exceed the price of the articles.
The written contract of the parties therefore, according to the established rules of construction, having settled their rights and duties as to the place at which these articles were to be delivered, it was improper to admit paroi evidence of their declarations before or at the time of the giving of the receipt, to shew that a different place had been agreed upon. The written contract was the only legal evidence of the intentions of the parties up to the time it was executed. All previous arrangements were merged in that. A written contract cannot be varied by paroi; and where the legal construction and effect of an instrument are well settled, it is varying the instrument to shew that the parties intended something else, as much as it would be to prove that the terms used were not in accordance with the previous agreement.
The defendant in this case was in no sense a naked bailee. The property which he received belonged to the plaintiff, and his undertaking was absolute, either to deliver it on a specified day or pay a specified sum. There was a sufficient consideration for the promise. Where a person, in the character of bailee merely, undertakes to deliver goods or chattels on demand, he has a right to deliver them and discharge himself from the obligation wherever and whenever the demand is made, either at the place where the property is, or at his dwelling house or place of business. 2 Kent’s Comm. 400. 1 Conn. Rep. 255. 5 id. 76. 16 Mass. Rep. 453. The case of Slingerland v. Morse, 8 Johns. R. 474, is considered by Chancellor Kent, 2 Kent’s Comm. 400, as falling within this class of cases. It was also characterized by many circumstances which distinguish it from the case at bar.
The decision of these points disposes of the whole case without noticing the other particulars in which the decisions of the court below are complained of:
The judgment must be reversed, and a venire de nova awarded.
