Williams v. Triplett

Stockton, J. The demurrer to defendant’s answer, which was sustained by the District Court, presents only one question for our consideration, viz: was the plaintiff’s right oi action defeated, by his refusal to receive the brick, when notified by defendant, at the time the note was due, he was ready to deliver them according to his agreement ? It is claimed for plaintiff, that something more than readiness to pay, is necessary to be offered by defendant, even when that readiness is made known to payee, and he refuses to receive the property; that it was defendant’s duty to ascertain at what place in the city of Keokuk, the payee would have the [526] articles delivered; and when the place, is specified, that defendant should deliver the articles at the place, by setting them apart and designating them as the property of payee; that if payee refused to designate the place, that then defendant may appoint the same, and notify payee to attend and receive the property; and that even the absence of the payee, does not dispense with such acts on the part of the defendant, as are necessary to vest the property in the plaintiff. W e readily concede that something more than an offer to perform by defendant, and refusal to receive on the part of the payee, is necessary, to discharge the defendant from all liability on the promissory note. But there is a clear distinction between the averment of sufficient facts on the part of defendant, to release him entirely from the obligations of his contract, as amounting to full payment or performance, and the averment of such facts only, as may defeat the present action, and excuse the defendant from the payment of the note, until plaintiff shall demand the delivery of the property, or notify defendant that he was willing to receive it. The defendant, by tendering the brick to the plaintiff, and properly designating and setting them apart for him, at the time and place stipulated, although plaintiff may not be present to receive them, or refuses to accept them, is discharged of his debt, and the right of property in the brick, thus designated and set apart, rests in the plaintiff. See Code, §§ 961, 968; Games v. Manning, 2 G. Greene, 254. But it is not claimed, in the present case, on the part of the defendant, that he is discharged wholly from his obligation. He can only be so discharged by payment, or by tender, in the manner indicated above. "Where, however, the debt- or has notified the payee of his readiness to pay the note, by delivering the brick, and the payee refuses to receive them, we think the debtor is relieved from the further duty of tendering the property, or paying the note, until the creditor by subsequent demand, informs him of his willingness to receive it. In the present case, the defendant has indicated to the plaintiff his election to deliver the brick, according to the [527] tenor of the note. A refusal to receive them, so far relieves him from the duty of tendering the brick, or setting them 'apart for the plaintiff, that the obligation cannot be converted into a money demand, or its payment as such enforced, without a further demand upon defendant. W hen once the election is made to pay in the specific articles, and notice given by defendant of his readiness to deliver them, a refusal to receive them, discharges the defendant, until a subsequent demand shall revive his liability. At the election of defendant, his obligation was to deliver to plaintiff, on a day certain, at the market price, good, merchantable bricks, in the city of Keokuk, to the amount of $250. On the day appointed, he had the brick ready to deliver, and so informed the plaintiff, who refused to receive them. This notice. to plaintiff, we. think; amounted to a- request to him to appoint the place where the brick should be delivered by defendant. This was enough for the defendant to discharge him of this action. It was then not necessary for him to tender or deliver the brick. It is well settled, that a tender or delivery, may be dispensed with by the positive acts or declarations of the payee. Gage v. Kendall, 15 Wendell, 639 : Bellinger v. Ketts, 6 Barbour, 281; Stone v. Sprague, 20 Ib. 509; Slingerland v. Morse, 8 Johnson, 473 ; Tibbs & Clarke v. Timberlake, 4 Littell, 12 ; Barker v. Parkenham, 2 Washington Circt. 142. If we are correct in this view of the subject, then defendant is relieved of the necessity of ascertaining at what place in the city of Keokuk, plaintiff required the bricks to be delivered. After a refusal .to receive them, he might well conclude that such an inquiry was dispensed with. The con- ' troversy between the parties is not, as we understand it, as to the place of delivery. It is, whether defendant may .discharge his obligation in money, or in good, merchantable brick, at the market price. If he shows no excuse for his nonperformance, the plaintiff is entitled to be paid in money. This excuse, we think, he has shown in the refusal of plaintiff to receive the brick. And such being our . conclusion, [528] we think the demurrer to defendant’s answer, was improperly sustained. The j udgment of the District Court is, therefore, reversed.