If the selectman, Foye, and the defendant, had agreed that the town should give a year's notice of payment, that agreement would have been no defence. That contract could not be made for the town by one selectman. Horn v. Whittier, 6 N.H. 88; Henniker v. Wyman, 58 N.H. 528. There was some evidence on the question whether all the selectmen assented. Glidden v. Unity, 33 N.H. 571, 579. But their assent was not proved. It is one of the facts stated in the reserved case, that the court did not find the assent of two selectmen; and the question of the effect of their assent does not arise. On two occasions, when the defendant refused to take the money, and attempted to avoid a tender of it, he did not claim a year's notice of payment, nor suggest that he was entitled to such notice. On one of those occasions, he said he had left the note in Boston; and on the other, he said it was out of his hands, and refused to tell where it was. At another time, nearly a year after the first tender, he refused to read the notice of deposit given him by the plaintiffs' treasurer, said he had transferred the note, but it was where he could get it, and said nothing of a year's notice of payment.
For the purpose of this case, the tender made by Scott was sufficient. Brown v. Simons, 44 N.H. 475, 477; Heywood v. Hartshorn, 55 N.H. 476; Fellows v. Dow, 58 N.H. 21. The sum in Scott's hands was greater than the amount of the note, and the defendant could not avoid a tender by unnecessarily going away without giving him a reasonable opportunity to offer the exact amount due. The strictness of the ancient rule of tender is justly relaxed upon a correct view of the contract and legal rights of the parties. The owner and holder of a note is bound, by implied contract, to receive payment when it is due. It is not his right to harass the debtor by definite or indefinite postponements. When the debt is due, the debtor has a legal right to pay it. Their implied contract on this point is a reasonable one; and it would be materially altered by the insertion of a stipulation that the creditor, by refusing to take the money when due, may put upon the debtor a substantial and unreasonable burden. By wrongfully refusing to take the money, the creditor violates his own contract and the debtor's right. By such a wrong, he cannot put upon the debtor an unreasonable burden of keeping the tendered money. There is other money as good as that. If the creditor prevents payment by wrongfully refusing to accept it, and afterwards demands it, the debtor is entitled to a reasonable opportunity to comply with the demand.
When the defendant, by going away, refused to take the money, Scott demanded the note, but did not make its surrender a condition of payment. Buffum v. Buffum, 11 N.H. 451, 456. But as it was a part of the implied contract, that if the defendant could he would return the note when due and paid, and as he was able to return it, the tender would have been good if it had been made
with such a condition. Stone v. Clough, 41 N.H. 290; Heywood v. Hartshorn,55 N.H. 476. What the parties would have been bound by their implied agreement to do if the note had been lost, is not material in this case.
For reasons stated in authorities cited in argument, the plaintiff is entitled to equitable relief upon the ordinary ground of want of an adequate remedy at law. And it would seem that the bill can be maintained upon s. 2, c. 209, Gen. Laws, which authorizes proceedings in equity for the restoration of a chattel unlawfully withheld from the owner. The plaintiff could have maintained trover against the defendant for the note, on the ground that payment or tender by the payer to the payee and holder vested the title of the note as a chattel in the payer as against the payee. When the note was given, the understanding of the parties was, that when payment, being due, should be made or tendered, the note should not remain in the hands of the defendant, where it would be evidence of non-performance of the plaintiff's contract, but should be given up as a chattel belonging to the plaintiff. Between these parties, since payment was tendered, the note has been a chattel of the plaintiff wrongfully withheld from the owner by the defendant.
When the amount due at the time of Scott's tender is deposited with the clerk of the court for the defendant, a decree will be made for a surrender of the note.
Demurrer overruled, and case discharged.
CLARK, J., did not sit: the others concurred.