Dunn v. Marston

Appleton, J. This was an action of assumpsit on a note of the following tenor : — “ For value received of R. B. Dunn we promise to pay him or bearer one hundred dollars, fifty dollars to- be paid in merchantable pine boards and fifty to be paid in pine shingles of such quality as he may select from those which we manufacture at' Taylor’s mills so called in Mt. Vernon, at a fair cash price on demand. “ Marston & Tilton, “ by C. A. Marston.” The plaintiff by this contract has obviously the right to determine at what time he will demand its performance. The defendants on their part are bound to have at all times on hand at the place of delivery, wherever that may be, enough lumber of the kinds mentioned to enable them to comply with its stipulations. Bailey v. Simonds, 6 N. H. 159. When the demand is made at a reasonable hour' and. at the proper place, it will be equally available whether the [381] defendants are present or absent. Mason v. Briggs, 16 Mass. 453. Higgins v. Emmons, 5 Conn. 79. The defendants contracted to pay the plaintiff a certain sum, part in boards and part in pine shingles of such quality as he might select from those they were manufacturing at Taylor’s mills. The lumber from which payment Avas to be made is specially described. It was to be manufactured by the defendants or by those in their employ at a given place : and lumber manufactured elsewhere or by other persons, so far as relates to the shingles at any rate, would not answer the requirements of the contract, which had clearly defined by whom and Avhere they were to be manufactured. The plaintiff might at any time make his demand and if the defendants complied with it, he might select' enough to pay that portion of his note payable in shingles. The right of selection applies to all on hand at the time of demand where-ever that may be made. That right the defendants could not limit nor restrain. To allow them to do that, would be to the extent of such allowance, an interference with the plaintiff’s rights, Avhich in this respect are unlimited. As the right of selection exists as to all the shingles manufactured at the time of demand, it must be exercised at the place where they are manufactured, otherwise the defendants would be compelled to remove the whole mass to the place of selection, wherever it should be determined to be, which would be absurd. When the selection is duly made the title to the lumber selected would vest in the creditor so selecting. The selection must therefore be made at the place of manufacture, and the delivery had at the place of selection. If the right of selection should be deemed to apply to the boards in which part of the payment was to be made, then the same reasoning would be applicable. If no right of selection existed as to them still no different results would follow, for it cannot be deemed to have been the intention of the parties to this contract that there should be separate and distinct places of delivery for each article by which the note was to be paid. The subject-matter of the contract, the ob382 jeet the parties had in making it and their presumed inten" tions are all to be regarded in connection with the instrument itself in determining’ what shall be its legal construction. Howard v. Miner, 20 Maine, 330. The place of delivery therefore is at Taylor’s mills, “for if the place intended by the parties can be inferred, the creditor has no right to appoint a different one.” 2 Kent’s Com. 507. Besides, if the plaintiff had the right to appoint a special place of delivery for the boards it might be waived,' and if when he made the demand he designated no such place, the place of delivery would be the place where they were at the time of the demand, or such reasonable place as the debtor might appoint. But a question of no less importance arises as to where was the proper place of demand, for if there has been no demand at the proper place the defendants cannot be deemed as in default. From the evidence it appears that the defendants were farmers, having a store at the village in the town in which they resided, at some distance from their farms, and that at the same time they were engaged in the manufacture of lumber at a place called Taylor’s mills, at some distance from the place where they transacted their mercantile business as well as from their farms. It has been settled that a note payable in farm produce should be demanded at the farm of the debtor and that one payable in merchandise or manufactures should be demanded at the store of the merchant or the shop of the manufacturer. Lobdell v. Hopkins, 5 Cow. 516; Chipman on Contracts, 28, 29, 30, 49. In Rice v. Churchill, 2 Denio, 145, the note declared on was “ payable in lumber, at cash price, when called for.” The defendant in that case was engaged in farming as well as in the manufacture of lumber. In delivering the opinion of the Court, Beardsley, J., says, “A personal demand was not necessary in this case. The lumber was payable at the defendant’s mill-yard, and the creditor must go to that place to receive it. He was not, however, bound to go there more than once, nor to remain until the defendant was found at the same place. One who enters into such an engagement [383] as this, must at all reasonable hours be at the place of payment, and prepared to perform his contract. If the debtor is not there a demand may be made of any one in charge for him; and if no such person can be found, a public demand at that place at a reasonable time will suffice.” It may be that a demand might have been elsewhere which would have been enough unless the defendants had met the demand with an offer to make payment at the place of delivery. If this was proffered on such demand the holder of the note would be bound to repair there to receive his pay. Scott v. Crane, 1 Conn. 225. Morrell, for the defendants. Kempton, for the plaintiff. The instruction given being in conformity with these principles was correct. The instructions requested proceed upon the assumption that no legal demand could be made at Taylor’s mills and were properly refused. The sufficiency of the evidence to satisfy the jury is not before the Court. The legal correctness of the rulings of the Judge are alone to be considered on exceptions. Shepley, C. J., Tenney and Howard, J. J. concurred. Exception overruled. Judgment on the verdict.