Locklin v. . Moore

Earl, C. The defendant bought the goods to be paid for at his store on the 1st day of January, 1869, and payment not having been made, the plaintiff commenced this action without a prior demand of payment, and the sole question is, whether such demand was a condition precedent to the maintenance of this action. It is the settled law of this State, announced in many decisions, that when a specific sum of money is made payable by the agreement of the par-ties, upon demand, or at a specified time at a particular place, as against the original debtor, no demand at the time or place, prior to the commencement of the suit, is necessary. The commencement of the suit is itself a sufficient demand. (Wolcott v. Van Santvoord, 17 J. R., 248; Caldwell v. Cassidy, 8 Cowen, 271; Haxtun v. Bishop, 3 Wend., 15; Nelson v. Bostwick, 5 Hill, 37; Hills v. Place, 48 N. Y., 520; Watkins v. Crouch, 5 Leigh, 522.) Most of the decisions upon this question are based upon bills of exchange, promissory notes, and bonds for the payment of money; but they do not proceed upon any ground peculiar to such instruments; and the reasons assigned are equally applicable to all agreements to pay money at a particular place or upon demand. The argument that in such cases the demand and place of payment are part of the contract, has frequently been made, and, in this State, uniformly overruled. A contract could, doubtless, be so drawn that the demand and place of payment would become part of it, so that, an action could not be maintained without a demand at the place. But, here, the agreement, as found by'the referee, is an ordinary one to pay at a particular time and place, and, certainly, can have no other effect than an acceptance of a draft payable at a particular place, or the agreement in a promissory note or bond to pay at a particular place. The only benefit the defendant could get from the specification of payment at a particular *363 place is, that if he was ready there to pay, and kept ready, he could set that fact up in his answer and then pay the money into court and allege such payment in his answer, and, thus, shield himself'from all liability for interest and costs. Such payment the defendant did not make or allege in his answer. Hence, the referee decided correctly, that his readiness to pay and payment to the referee upon the trial furnished him no defence. The defendant also claims that the referee erred in allowing plaintiff the sum of $8.30, proceeds of goods sold upon commission. No specific objection was taken upon the trial, or to the report of the referee to the allowance of this item, and, hence, such an objection cannot be considered here. The judgment should therefore be affirmed with costs. All concur. Judgment affirmed.