Tinnen v. Allison, 5 N.C. 107, 2 Car. L. Rep. 107 (1815)

Jan. 1815 · Supreme Court of North Carolina

5 N.C. 107, 2 Car. L. Rep. 107

Tinnen v. Allison.

This was an action of covenant founded upon articles of a race, entered into between the plaintiff and defendant, in the following words, to wit:

“ Articles of a race, made this the 3d day of October, 1809, between Robert Tinnen, of the one part, and Joseph Allison, of the other, witnesseth, the said Tinnen runs his stud horse, known by the name of Solon, against Joseph Allison’s stud horse Grey Medley, alias, Palafox, for the sum of two hundred dollars, carrying one hundred and sixty on each horse; the said race to be run on the paths known by the name of Bason’s paths, on the 21st day of November next, as witness, our hands and seals, this day and year above written.”

Upon the trial, the counsel for the defendant insisted that the plaintiff was bound to shew that the money was stated, and the court being of that opinion, the plaintiff suffered a nonsuit.

Seawell, J.

delivered the opinion of the Court.

The plaintiff has brought an action to recover from defendant for an alleged breach of contract on his part, and it is necessary the plaintiff should show that he has been guilty of no default. The articles on which the suit is brought, stipulate that a race is to be run at a particular day and place, between two horses, for two hundred dollars—they, therefore, do not contemplate that either is to trust the other; for no day being named for payment, that day is to be understood; and the winner, according to the import of the articles, would be immediately entitled to receive the money, which he could not obtain unless the loser had it to pay—and he who sues for a violation must show he was ready and prepared to do every thing requisite on his part.

Cameron, being of counsel for plaintiff, gave no opinion,

Wherefore, we are of opinion the rule for a new trial should be discharged,