40 Vt. 521 | Vt. | 1868
The opinion of the court was delivered by
This suit is brought against one of two joint and several makers of a demand note for forty dollars payable in hemlock bark. The other maker of the note is deceased. Two questions arise, one whether the facts disclose such a demand of payment as
I. The note was given February I9th, 1863. In the summer of 1863 the plaintiff, as is stated in the exceptions, called upon tins' defendant and demanded payment of the note according to its terms, requesting him to have the bark peeled during the summer and delivered the next winter, all which the defendant agreed should be done. It is urged that this constitutes rather an extension of time upon the note than a demand of payment. When a debt is payable in specific articles, it is but the part of a considerate creditor and a good neighbor, to accompany the demand with an offer of sufficient time to enable the debtor to deliver the articles without unusual inconvenience and expense. It is well understood that hemlock bark cannot be peeled advantageously except in the summer months, and that it is usually peeled and piled in the summer, and is generally and easiest loaded and drawn upon the snow in the winter. If, therefore, the plaintiff had waited until winter before he asked for the bark, the defendant might not have had it peeled, and if he had insisted upon immediate delivery when he made the demand in the summer, the defendant to comply with the demand, would have been put to the inconvenience of drawing it upon wheels. The plaintiff made precisely the kind of demand which was most appropriate to the kind of a note he held, and the defendant by failing to answer it as he promised, has become liable to pay the note in money.
II. The plaintiff was a competent witness as to the transactions between himself and the defendant with relation to which he was offered. The fact that the deceased co-signer was present on the occasion referred to, and witnessed what occurred between the plaintiff and the defendant, does not affect the question. The testimony related merely to transactions with, to use the language of the statute, “ a person who was living and competent to testify.” The manifest intention of the exception to the proviso of the statute is, to prevent the exclusion of a party from testifying when the bargain was made with a person 'still alive and competent, even though some other
Judgment affirmed.
