Walter v. Dewey

Spencer, Ch. J. delivered the opinion of the Court. The grounds of the demurrers are, 1. That the facts pleaded do not amount to a tender, and are not a sufficient avoid- ‘ anee or excuse for the non-performance of the covenants. 2. That the pleas are not issuable. The pleas I consider correct, in point of form, and they are taken from 2 Chitty Pl. 499. The question arising on them is this: whether the rent was payable on the premises, or whether the lessee was bound to seek the lessor, and tender the accounts. It is a well settled principle, as to rent, payable in money or kind, that where the contract is [224] silent as to the place of payment, a tender on the land is good, and it is not required of the lessee to make a tender to the person; and the reason is, that rent issuing out of the land, savours so far of the realty, that it is payable on the leased premises. (Bacon, title Tender, 6, 7, 8, 9. 1 Co. Inst. 210. Woodfall, ch. 10. s. 2. 268.) The precedent found in Chitty averring a readiness to pay on the land leased, relates to rent payable in money. The conclusions of the pleas demurred to vary from the precedent in this, that the latter not only states th.e bringing the money into Court to be paid to the plaintiff, but it prays judgment, whether the plaintiff ought to have or maintain his action to recover any more or greater damages than the money admitted to be due; thus, in effect, protecting the defendant from all damages and costs. In the 4th plea demurred to, there is an offer to pay according to the covenant, and the accounts are stated to be brought into Court, though I think it unnecessary in such a case to make a proferí. The pleas could not conclude as in the precedent, for no judgment can be given to recover the sum stipulated to be paid in accounts against other persons. What is to be the effect of a readiness to pay on the day, and a neglect to make the demand need not be considered in this case. Judgment for defendant, with leave to the plaintiff to amend, on payment of costs.