Goodwin v. Holbrook

By the Court, Marcy, J. It is said that the execution of the writings relative to the salt lot was a condition precedent to the payments to be made by the defendant, and that the declaration is defective in not averring that this was done. It is very evident, from an inspection of the agreement, that the covenant for the conveyance by the plaintiff is independent of the covenant on the part of the defendant. By the first agreement, the conveyance was to be made at a time prior to that on which the consideration, or any part of it, was to be paid; and, though it was extended afterwards to a time when a portion of the consideration became payable, there is nothing to shew that the payment was to depend on the execution of the writings. There would have been more reason for inferring such an intent in the parties if the payment of the whole consideration and the execution of the writings had been simultaneous acts. The plaintiff, to whom the payment was to be made, lived at Aurelius, where the covenants were entered into, and Matthews, • to whose rights and liabilities the defendant has succeeded lived at Salina, where the premises contracted for were situated, and where the article which was to be taken as payment was manufactured. It will be observed that the contract is to pay one thousand dollars in salt. If the payment had been to be made in money, there could have been no doubt as to the place of performance; it would have been the duty of the defendant to seek the plaintiff in order to make the payment. Is the place of performing the contract changed by substituting [380] a commodity for money? The implied place of performance js sometimes changed by the nature of the article to be delivered. If a merchant or manufacturer engages to pay on demand in the articles of his trade, and no place is specified in the contract, the store of the merchant or the workshop or place of the deposit of the fabrics of the manufacturer is the place where payment must be demanded before an action accrues for the non-performance of the contract. (Chip. on Cont. 28, 9.) It is said by the same author, “ that if a note of hand be given for cattle, grain or other portable articles, and no place of payment be designated in the note, the creditor’s place of residence is the place of payment.” (id. 25.) These two positions may seem to be contradictory ; but' one or two considerations cannot fail to shew that they are not so. The peculiar circumstances and course of business of the promissors in the first case warrant the inference that the parties intended that the articles shjuld be delivered at the promissor’s usual place of malting and delivering of the articles sold by them. The engagement is that the articles shall be delivered on demand. This seems to imply that the creditor must go to the debtor to make the demand, before the latter can be in default. But the ■ last proposition supposes the place omitted, but the time for delivery fixed. It presents a case like the one under consideration, and contains the rule of law that ought to be applied to it. Salt is as much a portable article as grain, and the time for the delivery of it in this case being specified in the contract, the defendant’s engagement must be construed to be for its delivery to the plaintiff at his residence in Aurelius, unless a different construction is authorised by the clause relative to packing the salt in barrels to be delivered by the plaintiff at the salt works in Salina. This clause does not, in my opinion, weaken—it rather strengthens the legal inference that Aurelius was the place of delivery. If the barrels were to be furnished at the place where the salt was to be delivered, why was it deemed necessary to specify that place ? The salt was to be packed at the place of manufacture; this act necessarily was to precede the delivery, but it could not be done till the plaintiff had furnished the barrels. There was something then to be [381] done by the plaintiff before the delivery, and the defendant is not in default for not making delivery as long as this act remains unperformed by the plaintiff; it does not appear by the pleadings that it was ever performed by him. But it is said that what relates to packing and furnishing the barrels is a distinct agreement, solely for the benefit of the plaintiff, and that he was at liberty to dispense with its performance. I view it as a part of the contract, and I do not know that it would not be less expensive to the defendant to pack the salt in barrels, and deliver it in them, than to deliver it in bulk; if it would be less expensive, that part of the agreement was beneficial to the defendant, and without his consent, the plaintiff could not dispense with it. But whether this be so or not is in no wise material; for if the plaintiff could have dispensed with it, the record does not shew that he did so ; and I hold the defendant excused for waiting until the plaintiff performed the act which necessarily preceded the delivery, or distinctly waived the part of the agreement relative to that act. Judgment on demurrer for defendant, with leave for plaintiff to amend.