Barns v. Graham

Curia, per Savage, Ch. J. The Court below decided correctly. When a note is payable in ponderous articles, and no place is designated, the law does not seem to have perfectly settled the place. In Slingerland v. Morse, (8 John. Rep. 477,) this Court appear to adopt the doctrine of Ld. Coke, (Co. Litt. 210, b.) that in such case, the obligor must seek the obligee before the day, and know where he will appoint to receive them, and there they must be delivered ; yet they hold that the obligor is not bound to deliver the articles at an unreasonable place. In this case, the defendant below made no effort of that kind; nor did he separate the property he intended to tender in payment of the note. Suppose, the night after the note fell due, a fire had consumed all the lumber at the mill; must the payee have lost it to the extent of his de [454] mand. ? How could he know which part to preserve, had he been present at the fire 1 The defendant below should, before the day of payment, have called on the plaintiff to know where the lumber should be delivered, and then have actually delivered it there, if the delivery at that place would have been reasonable, and within the probable contemplation of the parties, when the note was given ; as at the plaintiff’s house, in the same town, where he might wish to use the lumber; though the defendant ought not to he obliged to carry it to market for the plaintiff. But the defendant did not do enough, even if the lumber had been payable at his mill. He should have counted it out, having regard to the quality of the lumber specified in the contract. Judgment affirmed.