7 Ala. 775 | Ala. | 1845
The last plea sets up as defence to the action, a condition of the contract, that the sum of money for which it was made, “ may be discharged in good leather; one third in sole leather, at thirty cents per pound, one third in harness or skirting leather, at thirty-seven and a half cents per pound, and the residue in upper leather priced in the same proportion,” and averred a readiness and willingness to deliver the leather, at the maturity of the note.
In the case of McMurray v. The State, 6 Ala. Rep. 324, this Court considered, at some length, the law arising upon contracts to deliver ponderous articles, and it was held, that upon a contract to deliver plank upon a day certain, it would be a defence to the action, if the defendant was ready, and willing, to deliver at the time agreed upon in the contract. See also Thaxton v. Edwards, 1 Stewart, 524.
The defendant appears to have considered this contract, as in legal effect, a promise to deliver leather of the kinds specified, to the value of three hundred dollars, at a particular time ; but that is clearly not the contract of the parties, which is to pay three hundred dollars, at a particular time, with a condition superadded, giving them the privilege of discharging it iu leather, at a specified price. This is clearly for their benefit, and it was their duty, if they elected to deliver the leather in discharge of their contract, to give notice to the plaintiff of their readiness and willingness to do so. Having omitted to do so, their contract to pay the money has become absolute, and they cannot, when sued for the money, defeat the action by
The injustice of this defence will be apparent, when it is considered that the defendants were under no obligation to deliver the leather, and if it had risen in price, doubtless would not have delivered it, but would have paid the money; being then a condition inserted for their benefit, it was necessary that they should have given notice of their election to pay in leather. [McRae v. Raser, 9 Porter, 122; Stewart v. Donnelly, 4 Yerger, 177; Church v. Feteran, 2 Penn. 301; Erwin v. Cook, 2 Dev. 183.] From this examination, it appears that the plea was bad, in not averring notice of an election to discharge the obligation in leather.
The defendant, McLane, had the undoubted right to plead separately, and having pleaded the general issue, the plaintiff replied to it, that he did promise and assume, in connection with Plowman, his then partner. To this the defendant rejoined, that he did not assume, &c., reiterating his first plea, to which there was a demurrer, which the Court sustained. In this the Court undoubtedly erred. He had the- clear right t& plead separately, as was held by this Court in Beal v. Snedicor, 8 Porter, 523. We do not indeed perceive that the rejoinder was necessary, inasmuch as the replication controverted the allegation of the plea, and added another immaterial fací, which, as it went to the form only of the pleading, might, under our statute abolishing general demurrers, be rejected as surplusage. The informal replication, however, superinduced! the supposed necessity for the rejoinder, which was, in effect, merely taking issue on the replication, and by the decision of the Court upon the plaintiff’s demurrer, the defendant was effectually cut off from the benefit of his plea. For this error the judgment must be reversed and the cause remanded.
