2 Blackf. 87 | Ind. | 1827
This was an action of covenant, founded on a writing obligatory to the following effect: The obligors bound themselves to the plaintiff in the penal sum of 197 dollars, conditioned for the delivery of certain horses, to the sheriff of Harrison county, on a certain day, at the house of Jordan Vigus, in Corydon. The plaintiff avers in his declaration, that the defendants have not performed their covenant, nor has either of them; that the horses became due at the time specified in the obligation, are still due, and not delivered to the plaintiff, nor to the sheriff, as aforesaid, contrary to the covenant; that the defendants, though often requested, have not, nor has either of them, before, at the time, or since, the horses became deliverable, delivered the same or any of them to the plaintiff, nor to the sheriff, nor to any person for them or for either of them; but that they have hitherto wholly neglected and refused, and still do neglect and refuse so to do. To the damage of the plaintiff 300 dollars. The defendants craved oyer of the writing obligatory, and demurred generally to the declaration. The Circuit Court decided in favour of the plaintiff.
The objection made to the declaration, is, that it contains no averment of a demand of the horses, at the place specified for their delivery by the condition of the bond. To show the deficiency of the declaration in this respect, the plaintiffs in error have referred us to Sanderson v. Bowes, 14 East, 500; Rowe v. Young, 2 Brod. and Bingh. 165; and to the cases of Gilly v. Springer, and Palmer v. Hughes, in this Court. The first
The case wc are now considering, is, as has been already observed, of a character altogether different from those which have been mentioned. It is founded on a contract for the delivery of property, not for the payment of money. In this case, a tender and refusal of the property at the time and place fixed upon for the delivery, or the defendant’s being at the time and place with the property ready to deliver it, and the plaintiff’s not attending, nor any person for him, to receive it,—constitutc a complete plea in bar of the action, without the averinent of a readiness at any time afterwards to deliver it, or of a bringing of it into Court. By the tender and refusal, or that which is equivalent, the property becomes vested in the creditor, and his.right to sue upon the contract is at an end. Slingerland v. Morse, 8 Johns. R. 474. The consequence of this doctrine is clear:—The being afterwards ready, or the bringing of the property into Court, not being essential to the plea of tender, in* a case of this kind, the foundation of the decisions referred to, requiring the averment of a demand in the declaration, instead of leaving the defendant to his plea, fails entirely in the present case. Here, the obligors bound themselves fpr the delivery of the horses, at the house of Jordan Vigus, in Corydon, on a certain day. It was not material to them, whether the obligee attended or not: their duty was to be at the place, on the day, ready to deliver the property. If they neglected thus to attend, and did not comply with their obligation, they failed in their contract, and are'liable to an action. A demand by the obligee was not a precedent condition. It formed no part of the consideration of the bond. The obligors could have complied with their contract, and they were bound to do so, whether the obligee, or any person for him, attended or not. Had the defendants been ready, at the time and place, to deliver, and found no person there to receive,—they could, in this action against them, have pleaded that fact in bar, with as much effect, and with as little inconvenience, as they could an actual delivery, if there had been one.
From these considerations, we are of opinion that the declaration in this case is sufficient, without the averment of a de
The judgment is affirmed, with 1 per cent, damaSes and costs‘
“If anote be made payable at a banker’s, or other place, in the body of it, a presentment at that place must be averred and proved. Sanderson v. Bowes and others, 14 East, 500; Roche v. Campbell, 3 Campb. 247. But if the place of payment is merely subscribed at the foot of the note, it is no part of it, and must not be inserted in the declaration. Exon v. Russell, 4 M. & S. 505; Williams v. Waring, 10 B. & C. 2. But see Trecothick v. Edwin, 1 Stark. Rep. 468; where the whole of a note being printed, except the names, date, and sum, and a place of payment at the bottom of the note being also printed, it was holden that a special presentment there was necessary. The 1 & 2 Geo, 4, c. 78, does not extend to promissory-notes.” Hennell on Forms, &c. 112, n. (5). See Palmer et ux. v. Hughes, Vol. 1. of these Rep. 328, and note (2).