71 Ala. 145 | Ala. | 1881
The contract here sued on is one for the delivery of property, and not for the payment of money, and a written transfer would be necessary in order to authorize an assignee to bring suit on such an instrument in his own name.-Code, 1876, § 2890. It is equally evident that a complaint would be subject to demurrer, which failed to aver, on the face of it, such Vritten transfer of the legal title to the plaintiff bringing the suit.-Phillips v. Sellers, 42 Ala. 658.
The first count alleges that the obligation in question' was “ duly transferred ” to the plaintiff.' This -was clearly insufficient, as it may have been transferred by mere delivery and not in writing. The second count avers that it was “duly assigned.This, we think, must be construed to mean a transfer in writing, as distinguished from one by delivery, this being the true definition of the word when applicable to-contracts, as indicated both by usage and etymology.-Bouvier’s Law Dict., title, Assignment; Enloe v. Reike, 56 Ala. 500; Andrews v. Carr, 26 Miss. 577.
The demurrer was properly overruled as to the second count; but should have been sustained as to the first.
The rulings of the court below bear upon the proper" construction of the contract sued on, which- is an obligation on the part of the appellant Ragland to delivér a certain amount of lumber, of a quality particularly described. The promise is to “pay” the lumber to one Truss, who was the assignor of the
The rule governing the place of delivery in cases of this kind is not entirely free from doubt, the authorities being in irreconcilable conflict. Where money is to be paid, it seems well settled that the payor must seek the payee, and make a tender of the amount due him, in the absence of a contrary stipulation. In the case, however, of specific articles, if no place of delivery is specified, the general rule is, especially when such chattels are cumbersome, that they are to be delivered at the place where they are, or are to be manufactured. The vendor, unless otherwise agreed, is not bound to send or carry the goods to the vendee. All that he is required to do, is to deliver on demand to the purchaser. Such an obligation does not become payable in money, and the foundation of a suit, until there has been a demand by the purchaser, and a refusal on the part of the vendor to deliver. The case of Cobb v. Reed, 2 Stew. 444, holding the contrary, is unsupported by principle or authority, and is overruled. This seems to. us the sounder and more sensible rale, and better in harmony with the modern usages of commerce and customs of every day business.-Benjamin on Sales, § 679; 5 Wait’s Act. & Def. 570; 2 Kent’s Com. 505; Lobdell v. Hopkins, 5 Cow. 516; Minor v. Michie, Walker’s (Miss.) Rep. 24; Bishop on Contr. 699 and cases cited; Greenwood v. Curtis, 6 Mass. 358; Stevens v. Adams, 45 Me. 611; Johnson v. Baird, 3 Blackf. 153.
.And, generally, before any action can be maintained by the promisee in such cases, proof must be made that he was ready at the proper time and place to receive the chattels, or that the promissor was unable then and there to deliver them. A demand must be shown, or else proof made that such demand would have been nugatory. — 2 Parson’s Contr. 163.
The present contract must be construed to be an agreement on Eagland’s part to deliver the lumber at his, the vendor’s mill, one-half respectively during each of the years 1877 and 1878, on demand being made by the vendee. Until such demand by the plaintiff is proved, or facts shown which dispense with the necessity of making it, there is no default or breach of the contract by the defendant. Until there was a breach, there would, be no interest accruing on the amount due to the plaintiff. Debts or obligations payable on demand do not bear interest until a demand is made, or suit is instituted.-Maxcy v. Knight, 18 Ala. 300; Vaughan v. Goode, Minor’s Rep. 417.
Under this construction of the contract, the ruling of the
Reversed and remanded.