Cummings v. Putnam

Woods, J. The plaintiff in this ease had pledged to the defendant the horse which is the subject of the controversy, to secure the payment of twenty-five dollars in six days. These terms were put in writing. But the parties after-wards agreed upon a place for the pledge to be kept, where [571] the plaintiff might find it, when redeemed, and a party to receive the money and re-deliver the pledge, at the place agreed on. It was objected, that this agreement was not one which the plaintiff could set up, because it was in contravention of the terms of the written agreement, and was not itself reduced to writing. But this is not so. There is nothing in assigning a time and place for paying the money, that derogates in any degree from the obligation or contract to pay it. In Currier v. Currier, 2 N. H. Rep. 75, it was held that evidence might be admitted of the place for the performance of a written contract, which did not itself designate a place. And in Robinson v. Batchelder, 4 N. H. Rep. 40, it was held that when a written contract, for the delivery of specific articles, fixed the place of delivery, evidence was admissible to show that the parties afterwards verbally agreed upon another place ; and a tender at the latter place was, in that case, holden to discharge the contract. The doctrine of those cases has not been drawn in question, and that of Robinson v. Batchelder goes to the full extent of sustaining the plaintiff’s position here. The agreement to make certain what the writing had left dependant upon every accident that could determine the location of the defendant at the time the money should become due, was in perfect consistency with the contract itself, and was, moreover, in this case, made afterwards; and for that cause, within the rule of law which permits parties to alter and vary, by parol, written contracts previously made, as they see cause. The same remarks are applicable to that part of the unwritten supplement to the contract, which designated Tarbel as the person to whom the payment should be made. The contract, as supplied by these additional stipulations, was kept by the plaintiff, so far as was possible for him to keep it, that is, it was fully kept and performed, except so far as the default of the defendant rendered the performance [572] impossible. He repaired to the place agreed upon, and offered to pay, in a manner and with money such as Tarbel admitted to be satisfactory, the twenty-five dollars; and that, too, within the six days within which the same was to have been paid. Tarbel took the money and counted it, and made no objection to it as money; and as he was the party appointed by the defendant to receive it, his acts and his forbearance in this particular may be regarded as if he were the defendant himself. Having done all that he was permitted to do, the plaintiff became thereupon entitled to the possession of the pledge. The defendant, however, has converted it to his own use, by selling it. He is therefore clearly liable in this action, and the plaintiff is entitled to Judgment on the verdict.