Armstrong v. Tait

COLLIER, C. J. Upon a mere inspection of the writing declared on, we should not have supposed it to evidence a promise seriously made, and intended to be enforced, by the delivery of the specific article undertaken to be paid. But the contract, as presented' on the record is certainly legal, and the earnestness with which the matter was litigated below, very conclusively shows that the controversy is real. [638] The question to be considered is, whether the facts proved show a tender, or such a readiness to perform on the part of the defendant, as to furnish an answer • to the action. It must be conceded, that the decisions do not entirely agree upon the point as to the manner in which a contract to pay in specific articles may be discharged, or the performance excused, where a pay^ ment is not made in fact. In some of the cases, it has been held, that in order to make a good tender, the articles must be set apart and designated, so qs to enable the creditor to distinguish them from others of the same kind, and that the property so tendered vests in the creditor, and is at his risk. [Smith v. Loomis, 7 Conn. Rep. 110; Wilt, et al. v. Ogden, 13 Johns. Rep. 56; Barnes v. Graham, 4 Cow. Rep. 452; See also, Robinson v. Batchelder, 4 New. Hamp. Rep. 40.] In Lane v. Kirkman, [Minor’s Rep. 411,] it was said, “ that in contracts for the payment of specific articles, where no place of delivery is mentioned, the residence of the debtor, by legal construction, is understood to be the place.” And in Thaxton v. Edwards, [1 Stew. Rep. 524,] it was held, that it was a good de-fence to a note for the payment of specific articles, that the defendant was ready, able and willing to deliver them at the appointed time, and that the plaintiff did not make a demand. In Garrard v. Zachariah, [1 Stew. Rep. 272] after the maturity of a debt, it was agreed that the debtor should buy and deliver to the payee specific articles in satisfaction; accordingly, the articles were purchased, but the payee refused to receive them: held, that it was not necessary to aver that the defendant still had them ready to deliver ; that “ The rules which apply to a tender of money ought not to govern a tender of specific articles. Money can be kept without expense, and with little comparative risk.” Further, that the party who undertakes to pay a debt in such property, if he has it ready on the day, he is not bound to keep it for an indefinite time ready to deliver to the payee on demand, nor is it necessary that he should abandon it in order to be discharged from a performance. But the Court said it may be, that if the debtor converts the property to his own use he would be liable in an action of trover. Cobb v. Reed, 2 Stew. Rep. 444, cites and recognizes the cases of Lane v. Kirkman, and Thaxton v. Edwards-supra. [639] Where a party undertook to deliver plank on demand, we held, that to subject him to an action he must be put in default by making a demand ; “ for it cannot be expected that one shall always have a ponderous article ready to be delivered, until some time is ascertained, either by the consent of the parties, or by notice given.” [McMurray v. The State, 6 Ala. Rep. 324.] In Young v. Foster, 7 Porter’s Rep. 420, the defendant sold to the plaintiff seven hundred bushels of corn, which he undertook to deliver in the plaintiff’s boat at an appointed time, or sooner if ho desired it. The defendant, upon the demand being made, refused to deliver a part, because the boat could not carry all the corn at onetime. But we-held, that if the quantity of corn was too large to be received at one time, according to the ordinary mode of transportation,'the law of the contract is, that a refusal to deliver any part of it, because all could not be taken in the boat, was not justifiable. That in “ a contract for the purchase and delivery of such a -ponderous article as corn, the parties must be presumed to have contracted in reference to the necessity of the case, and to the habits and means of transportation common in the countryand the law in this respect, is the same, whether the delivery was to be made on a day certain, or on demand. The cases cited from the decisions of this Court, under its present and earlier organization, furnish principles for the adjudication of that now before us. As to the place of the demand, that is conceded to be the residence of the debtor, but it is insisted that the tender made was not sufficient to prevent the promise to pay in specific articles, from becoming an absolute engagement to pay the amount in money. If the plaintiff was not bound to remove all the shucks at the same time, he could not insist upon their delivery sooner than he was able to remove them. No reasonable purpose would have been subserved by the defendant’s delivering all at once, and at the point designated by the plaintiff; whilst it might have been exceedingly inconvenient for the defendant, and hazardous to the safety of his property, by depositing such a large amount of combustible material in a situation so much exposed. Nor was it necessary that a sufficiency of the shucks, to discharge the debt, should have been stripped from.the corn to make the defendant’s [640] readiness or tender complete. They were, while oil the com, in a situation quite as favorable 'to their preservation as any other, and it was entirely permissible for them to be kept there until the plaintiff was prepared to haul them off. True, the defendant might have offered to deliver all at the same time, and abandoned them to the plaintiff, and if they had been lost or destroyed without the special interference of the defendant, he would have been absolved from his contract. Yet the defendant was not bound, thus to set apart and abandon the article to the plaintiff; it was enough (as we haye seen) that he was ready and actually offered to perform. One of the cases cited, shows, that having been ready and willing to deliver, the shucks at the time appointed, the defendant was not obliged to retain the same article ; for that might be exceedingly inconvenient, and impose a burden beyond all benefit derivable from the contract. The remark of the Court to the jury, that if the plaintiff failed in the present suit, that he might recover the article in another action, whether true or not, could not have misled the jury, or have induced them to do anything more than duty required. The jury, doubtless, felt constrained by the evidence, to return a verdict for the defendant, and to reconcile them to the performance of a duty which seemed to have been hard upon the plaintiff, they made the inquiry of the Court. The instruction upon this point was expressed in such terms that it could not, be inferred that the Court laid any particular stress on it, or that the right of the plaintiff to recover in a future action should incline them to find for the defendant. Our conclusion is, that the judgment of the County Court must be affirmed.