7 Conn. 110 | Conn. | 1828
By the terms of this contract, the defendant was bound to pay or deliver to the plaintiff 10,200 brick, at a certain time and place. But he neither delivered, offered, nor tendered them, though he claims to have done that which was equivalent. He was on the spot, and had the brick ready to deliver, but did not deliver nor tender them, because the plaintiff was absent. He certainly could have designated the brick intended for the plaintiff, and set them apart, and thus have paid the debt, by vesting the property in the plaintiff. Until this was done, the note remained unpaid, and the defendant liable to be sued. The presence of the creditor was not necessary to enable the debtor to fulfil his contract. A tender might as well have been made in his absence as presence. A tender would have been as effectual a bar as payment, and would as effectually have vested the property in the plaintiff. “ If,” says the late Chancellor Kent, “ the debtor makes a tender of specific articles, at the proper time and place, according to contract, and the creditor does not come to receive them, or refuses to accept them, the better opinion is, that the debtor is thereby discharged. And the analogies of the law would appear to lead to the conclusion, that on a tender of specific articles, the debtor is not only discharged from his contract, but the right of property in the articles tendered passes to the creditor.” 2 Com. 400, 1. “ Besides,” says Chipman, (Essay on Contracts 158.) “ there are cases, where the tender is good and effectual, even to the discharge of the contract, when there never was any thing but a constructive refusal. Such are all the cases of a tender of specific articles, at a time and place
Though we find much confusion and contradiction in the books on this subject — (vide Chipman, passim.) our own practice seems to have been uniform, for nearly sixty years, and establishes these propositions. 1. That a debt payable in specific articles, may be discharged, by a tender of these articles, at the proper time and and place. 2. That the articles must
Judgment reversed.