Dewey v. Washburn

The opinion of the court was delivered by Redfield, J. — The defendant, in this case, insists that the plaintiff’s declaration is bad on general demurrer. A promissory note or bill of exchange has long been considered an instrument in the nature of a specialty, importing on its face a consideration, and which, according to the custom of merchants, might be declared upon, without setting forth [581] any consideration for the promise in the instrument. But any reference to the custom, in the declaration, is unnecessary. Erskine v. Murray, 2 Lord Raymond, 1542. So it is unnecessary to raise a regular assumpsit. Brown v. Harraden, 4 Term R. 155. It was decided by this court, many years since, that a declaration upon a promissory note, in this form, was good. Binney et al. v. Plumley, 5 Vt. R. 500. The.authorities upon this subject, are there very fully considered, and it is not deemed necessary to make any comments thereon. It is true, indeed,- that the paper declared upon in this case, is not strictly á promissory note, and at common law, would not be so treated. But contracts of this form, although payable in’ specific articles, have, by common consent, and by repeated decisions of the courts, been treated in this state, many years, as promissory notes, so far as the form of the declaration is concerned. Brooks v. Page, 1 D. Chipman’s R. 340. In the case last' cited, indeed, it was held, that in declaring upon a contract, like the one under consideration, it was necessary for the plaintiff to aver in his declaration, that he was ready at the time and place of payment to receive pay; but that is not now the rule. It is now settled that the defendant may discharge his contract by a tender at the time and place of payment, and that he is bound to do so, whether the payee attends or not. Barney v. Bliss, 1 D. Chipman’s R. 399. So that the present declaration is sufficient. Judgment affirmed.