59 N.H. 46 | N.H. | 1879
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,
For the purpose of this case, the tender made by Scott was sufficient. Brown v. Simons,
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,
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.