Rice v. Churchill

By the Court, Beardsley, J. This agreement was not for the delivery of specific articles of property, but for the payment of a certain sum in lumber at cash price. No time or place of payment is mentioned in the contract, nor does it indicate what description of lumber was demandable by the holder of the note or might be turned out by the maker in satisfaction of his engagement. On such a contract payment must be demanded before an action will lie upon it. In Lobdell v. Hopkins, (5 Cowen, 516,) Chief Justice Savage said, “ the note unexplained amounts to a note payable in specific articles, without time or place; and the want of time renders it payable on demand. On such a note a special demand is necessary.” For this he refers to various authorities, to which may be added the case of Vance v. Bloomer, (20 Wend. 196.) These show the general law on the subject; but in the case now before the court, the express words of the contract made a demand necessary, for the lumber was to be paid “ when called for.” The defendant owned a saw mill and his lumber was kept at the mill yard; that was therefore the place at which this note was payable. It was like the note of a merchant payable in goods, or of a mechanic payable in his work, in which cases the law implies that the store of the former or the shop of the latter is the place of payment agreed upon by the parties. (Chip. on [148] Cont. 28, 29, 30, 49; Barker v. Jones, 8 N. Hamp. R. 413; Lobdell v. Hopkins, and Vance v. Bloomer, supra.) A personal demand of the defendant at his mill yard would undoubtedly have been sufficient. And even had it been made elsewhere, that would have been enough unless the defendant met the demand by an offer to make the payment at his mill yard. If this was proffered on such demand being "made, the holder of the note would be bound to repair to that place to receive the lumber. (Higgins v. Emmons, 5 Conn. R. 76; Scott v. Crane, 1 id. 255.) But 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 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. (Mason v. Briggs, 16 Mass. R. 453; Higgins v. Emmons, 5 Conn. R. 79; 5 Cowen, 518, note; Chip. on Cont. 28 to 30.) It may be conceded, for the point is not in this case material, that the demand first made of the defendant’s son was insufficient, it being understood that the holder of the note would call again for the lumber. That call was soon after made, for the holder came from his residence, a distance of seven or eight •miles, and not finding the defendant at the mill, his son, who was there, was requested to turn out the lumber. This was not done, and as the contract was thus violated the" action was well brought and the plaintiff entitlcdto Tecover. It is not pretended that the secónd demand was at an unseasonable time,-or in any respect objectionable, if one could be made when the defendant was not present in person or by an authorized agent. ’The defendant had engaged, in --effect, to make the payment at his lumber yard, and that it-should be done whenffemanded. The time to make the payment was not fixed by the contract, and it [149] might he demanded any day which the holder pleased. It was the business of the defendant to be ready, at all reasonable hours, to answer the demand of payment,, for he had no right to expect that successive calls would be made to suit his convenience. The duty to make the payment rested on him, and he was bound to perform it whenever a demand was made at the proper place. There was no error in allowing evidence to be given of what the defendant’s son said, when the lumber was first demanded of him. He refused to deliver the lumber, and what he said was a part of the act of refusal. It was received for that purIjose, and was clearly admissible. Judgment affirmed.