Durkee v. Marshall

By the Court, Sutherland, J. The only question in this case is whether a demand of the candles before suit brought was sufficently proved, no time or place of payment being specified in the note. The case of Lobdell v. Hopkins, 5 Cowen, 516, shows that it was payable on demand, and that a special demand was necessary, at the shop or manufactory of the defendant, the defendant being a manufacturer of candles. Vide Chipman on Contracts, from p. 28 to 49, and the other cases cited in Lobdell v. Hopkins. The evidence as to the demand was sufficient to be left to the jury, and I am inclined to think it was left to them as a matter of fact; although some of the expressions used by the court might, if disconnected from other parts of the case, seem to intimate that they decid- ' [314] ed as a matter of law that a sufficient demand had been . made, it jg manifest from the whole case that such was not their intention ; they admitted that whether a demand had or had not been made, was a question of fact for the jury to de- ■ die. The counsel for the defendant, after the evidence was closed, requested the court to instruct the jury that the plaintiff could not recover on the note, on the ground that a suffi- ' cient demand had not been made before suit brought. But the bill of exceptions states, “ that the court .decided that th'e evidence was sufficient to leave the said question to the jury,” and then and there stated their opinion to the jury, that the matters given in evidence shewed a sufficient demand. It is not to be supposed that when the court had in one breath decided that there was evidence enough to go to the jury on the question of demand, that in the very next breath they charged them as a matter of law, that the demand was sufficient. They merely intended to express an opinion upon the weight of evidence; not to take the question from the jury. In a case like this, involving an amount of only $5, commenced originally before a justice of the peace, where the plaintiff recovered, carried by appeal to the court of common pleas where he again recovered, and now brought into this court by writ of error, nothing but a clear and palpable violation of some rule of law would justify this court in reversing the judgment. Judgment affirmed.