Coffin v. Reynolds

Gtlfillan, C. J. The plaintiff made to defendant a chattel mortgage upon a horse, to secure his note payable in wood, at a designated price per cord, and at a fixed time and place. The plaintiff commenced to deliver the wood at the place indicated, and continued delivering, the parties not making any accurate measurement of the wood as delivered, until defendant informed him that a rough estimate had been made, and, unless there was a mistake, he had delivered enough, but that he might go and even out the piles, and square the ends, and if there was more than was required, he would pay him for the overplus. After the mortgage became due, defendant ascertained that enough wood had not been delivered, and went to the plaintiff and notified bim of the fact, who thereupon offered to put the balance of the wood on the ground at once. Defendant refused to receive it, but offered to take the balance in railroad ties, money or work, and plaintiff agreed to pay the same in one of the ways mentioned, but never did. Several months after the mortgage became due, the defendant took possession of the horse under the mortgage, whereupon plaintiff brought this action for a conversion. The information first given by defendant to plaintiff, that, unless there was a mistake, he had delivered enough of the [458] wood, excused strict compliance with the contract, but it was bis duty to deliver tbe balance within a reasonable time after defendant informed him that enough bad not been delivered. He could not discharge tbe ben of tbe mortgage, except by delivery of tbe wood or by a legal tender of it, or if defendant was willing to accept anything else in beu of it, by delivering or paying that. He could make a legal tender of it only at tbe place designated, and so that, upon th? tender, tbe title to tbe wood should vest in tbe defendant, which plaintiff did not do. Smith v. Loomis, 7 Conn. 110 ; McConnell v. Hall, Brayton, 223 ; Barns v. Graham, 4 Cowen, 452. Tbe ben of tbe mortgage still continuing, defendant bad a right to take tbe horse under it. Tbe judgment below must be reversed.