Foust v. Hannah

ASSUMPSIT, commenced, October 3d, 1845, before a justice of the peace, upon a promissory note for 30 dollars, dated October 8, 1832, and payable, for value received, four months after date — “ to be paid by making a bee-house.” A plea was put in, which, as the magistrate supposed, raised a question upon the title to real estate, and the cause was accordingly certified, under the statute, to the Circuit Court. As the case originated before a justice of the peace, the general issue must be considered as filed. The cause was submitted to a jury, and the only evidence given on its trial was the note above described. The defendant asked the Court to instruct the jury that the plaintiff could not recover without proof of a demand of the bee-house before suit brought. The Court refused so to instruct. Held, that there was no error in this. The note sued on was, as we must presume, given for an existing debt; was certain in amount; and was made payable at a certain time, and in a certain thing. Under such circumstances no necessity for a demand is perceived. The debtor was bound to take notice of the time his debt fell due, and, under the general rule, was bound to seek his creditor and pay it. But in this suit, the place of delivery or performance of the work is not in question, as it was not shown that the defendant had made, or offered to make, the required article at any place. A demand was not necessary to inform the defendant what he had to do, nor when he was to do it. These points were settled at the giving of the note. See Frazee v. Me-Chord, at the present term of this Court (1). The judgment is affirmed. Footnotes [(1)] See ante, p. 224.