Patterson v. Jones, 13 Ark. 69 (1852)

Jan. 1852 · Arkansas Supreme Court

13 Ark. 69

Patterson vs. Jones, adr.

Where a party covenanted to delivei cord wood to another, on a particular day, hut no place was specified in the contract, the law fixed the residence of the party agreeing to furnish the wood as the place of delivery.

In an action on such a covenant, it is not necessary to allege a demand of the wood — readiness and offer of performance on the part of the obligor, is matter of defence to be interposed by plea.

Appeal from, St. Francis Circuit Court.

This was action of covenant brought by Jones, administrator of Crumbaugh, against Patterson, in the St. Francis circuit court.. The action was founded on an instrument, bearing date 26th of June, 1849, by which Patterson “covenanted and bound himself to pay to Crumbaugh, or order, on or before the first duy of June, 1850, two hundred cords of ash wood or its equivalent.” The declaration set out the instrument, and alleged, as a breach, simply the non-payment of the cord wood or its equivalent.

The defendant demurred to the declaration, on the ground that no notice to deliver, or demand of the wood was averred in the declaration.

The court overruled the demurrer, defendant rested, inquest of damages and final judgment, from which defendant appealed.

English, for the plaintiff.

There being no place of delivery specified in the obligation, the law fixes the usual residence of-the obligor, as the place of delivery, (Goodwin v. Silrooh,^. Wend. 377. Chip, on Con. 25, 28. Walton v. Patton, 2 Bibb 280. Currier v. Currier, 2 N. Stamp. 75. Rawson dal. v. Johnson, 1 East 203,) and the plaintiff should have averred a demand and offer to receive the wood.

Pike & Cummins, contra.

The contract being silent as to the place of delivery, the debtor must apply to the creditor and know where he will receive the property; otherwise he is in default. No demand or notice from the creditor is necessary. 1 Grccnl. Rep. 120. 5 lb. 192. 2 Kent 507. The debtor must be ready and call upon the creditor to fix the place of delivery. Vance v. Bloomer, 20 Wend. 196. 2 Kent 508. 8 J. R. &7G. -

Mr. Justice Walker

delivered the opinion of the Court.

The defendant covenanted to pay two hundred cords of ash wood or its equivalent on a given day. As no place of payment is mentioned in the contract, the law fixed that at the residence of the party by whom the payment was to be made. The contract was unconditional, and when time and place were thus fixed, the question is, did it at once devolve upon the party promising to pay, to do so or excuse himself by showing a readiness and offer on his part at the time and place thus ascertained, or was it necessary for the plaintiff, in order to maintain his action, to demand of the defendant the property, and in addition to his statement of the contract, and alleging its breach, should he be required also to aver and prove-aidemand and refusal to pay the property? It is sufficient in pleading, for the plaintiff to show a legal obligation on the defendant; and to aver that he has failed to perform it. And we think, in thfi^spstancc, that he has done so. The obligation on the defend antlto pay was complete and unconditional. To demand of him-.to pay the cord wood was but to require of him to do what the law enjoined and what his contract required of him. His legal liability having been fixed by law, ho was required to perform-or tender and offer to perform. This is matter of defence to be interposed by the defendant. Hoys & Pattees v. Tultle, 3 Eng. 129. Id. 146. 4 Bibb 226. Id. 97. 5 Yerger 410.

The circuit court therefore did not err in overruling the demurrer to the plaintiff’s declaration.

Let the judgment be affirmed.