Wisecarver v. Adamson

Opinion, Me. Justice Paxson : We are of opinion that the defendant’s first point should have been affirmed. If, as stated in the point, the lumber of the defendant below was to be planed and dressed at the plaint [58] iff’s mill at a price agreed, upon, and the plaintiff was to take lumber of the defendant at a fixed price in payment, and to be delivered at the farm of the latter, and the defendant had and kept at the place of delivery a supply of such lumber, which he was at all times ready and willing to deliver to plaintiff, and sufficient to pay his bill for sawing, it was plaintiff’s duty to make demand at the.place of delivery for the lumber before the defendant would be in such default as to render him liable to pay in money. If the jury had found the facts as stated in this point it would have been their duty to render a verdict for the defendant. Authority is scarcely needed for so plain a proposition. It is sufficient to refer to Hamilton v. Calhoun, 2 W. 139; Roberts v. Beatty, 2 P. & W. 63. Where a heavy .article like lumber is to be delivered at a particular place, the debtor is not required to make a tender of it unless the creditor will go after it. This the plaintiff never did. He presented his bill to the defendant and demanded payment. The defendant objected unless plaintiff would take lumber as he had agreed to do. This was his right under the facts assumed in the point. The remaining assignments refer to the same question and •do not require separate discussion. The judgment is reversed and a venire facias de novo awarded.