Benners v. Executors of Howard, 1 N.C. 149, 1 Tay. 149 (1800)

March 1800 · North Carolina Superior Court

1 N.C. 149, 1 Tay. 149

Benners versus Executors of Howard.

A SPECIAL verdict had been found in this case stating, in substance, that in June 1788, the plaintiff sent to the defendant’s testator thirty barrels or rosin; that the defendant’s testator died in December 1790, and the writ was taken out in June 1792—The question was, whether the writ was a sufficient demand.

Slade for the Plaintiff.

Graham for the Defendant.

On a promise to deliver goods &c. a demand is indispensably necessary.

By

the Court.

Where a promise is, to pay a sum of money, but no time is mentioned, it is due presently, and an action lies without any request—.But where, under the like circumstances, a promise is made, to deliver goods, or to do a collateral act, it is necessary that the party to whom it is to be done, should make a demand of the promiser before an action is brought. Though no express promise be made in the present case, the law implies that the borrower should restore in kind the thing borrowed, on request, or pay the value in damages; but, to maintain a suit for the latter, the request is indispensably necessary.

Judgment for the Defendant.