Remick v. Atkinson

11 N.H. 256 | Superior Court of New Hampshire | 1840

Gilchrist, J.

It is no objection to the demand in this case, that it was made at the dwelling-house of the defendant in his absence. If it were necessary, in a case like this, to make a personal demand, it would always be in the power of the party to elude a demand, and thus avoid his responsibility. One who makes a contract to deliver specific articles on demand, should be always ready at his dwelling-house, or place of business. A demand made upon him personally, for goods which he could not carry about him, would be liable to more reasonable objections than that in the case before us. Mason vs. Briggs, 16 Mass. 453; Lobdell vs. Hopkins, 5 Cowen 516; Goodwin vs. Holbrook, 4 Wend. 377; Chipman on Contracts 49.

It has been held in this state, that the estimate of the value of articles contained in a contract similar to this was conclusive upon the parties. Drown vs. Smith, 3 N. H. Rep. 299. It is there said, that the value is inserted in order to fix the extent of the defendant’s liability, in case the goods were not returned, and to ascertain their value in any dispute that might arise concerning them. It is also held, in Wakeman vs. Stedman, 12 Pick. 562, that the valuation in an instrument of this description is to be taken to be the agreed value, and binding upon the parties unless it be shown that some fraud was practised.

In the case of Drown vs. Smith, the receipt was given for books, which were valued at a gross sum. The defendant admitted that he had sold a considerable portion of them, but offered to prove a tender to the plaintiff of the residue, in part discharge of the contract. Upon this point, it is said by the court, “had each article been particularly valued, we think that this objection would have merited much attention, and we are not prepared 'to say that it could have been satisfactorily answered. But in this case the value of all the articles was fixed, and not the value of each, and we are of opinion that in such a case a tender of a part imposed upon the plaintiff no obligation to receive the part so tendered, unless the defendant had a reasonable excuse for not delivering the residue.”

In the case before us, the plaintiff should have accepted the property which was then in the possession of Cook, the agent of the defendant. It had no connection with the oxen, and a distinct value was affixed to each article, so that it could easily have been ascertained, had the property been accepted, how much of the defendant’s liability had been discharged. As he refused to accept it, he is now entitled to judgment only for the value of the oxen, as estimated in the receipt. According to the agreement of the parties, the verdict must be amended, and the plaintiff is entitled to judgment thereon for the sum of sixty dollars.