Barrett v. Eller, 51 N.C. 550, 6 Jones 550 (1859)

Aug. 1859 · Supreme Court of North Carolina

51 N.C. 550, 6 Jones 550

HENRY BARRETT v. JOSEPH ELLER.

An obligation to pay a sum of money,, oil a given day, “ to be discharged in any good trade, to bo delivered at any one of several places,” imposes on the debtor the burden, if he would save the condition, of' giving notice of the place where he will have the goods, and of having them there, on the day, duly set apart.

Assumpsit, tried before Bailey, J., ata Special Term, July, 1859, of Buncombe Superior Court.

The suit was brought on the following instrument: “ By the 25th of December, 1858, I promise to pay Ilenry Barrett one hundred and lifty dollars, to be discharged in any good trade, to be delivered at any of my Flat Creek plantations, for yalue received, this 7th of August, 1855.”

(Signed,) Joseph Ellee.

The pleas were non-assumpsit, set-off, and accord and satisfaction. On the trial, the defendant gave evidence that he bad six plantations on Flat Creek, and that, at one of them, (on which he did not live, but which he was often at,) he had. on the 25th of December, 1858, corn and wheat, of greater value than $150, and, thereupon, he prayed the Court to instruct the jury, that, if they found he had thus the ability to deliver the corn and wheat, in discharge of the note, at the said plantation, the plaintiff could not recover, inasmuch as he had failed to show any demand, on -the day, at any one of the defendant’s plantations. The Court gave the instruction as prayed, and the jury found for the defendant, and from the judgment the plaintiff appealed.

Merriman, for the plaintiff.

jy. W. WoocLjm and J. IF. IVoodjm, for the defendant.

BuefiN, J.

If the facts would constitute a defense, it would bo unavailing here, as there is no plea of readiness on the part of the defendant. But, in truth, if there had been that plea, it would not have been a bar upon these facts. The instrument was treated at the trial, as if it were a contract to deliver specific articles of a certain value, at a particular day, at one of several places ; and it was held, that having the articles at one of the places at the day, answered the plaintiff’s demand, although the defendant gave him no notice of the kind of articles, or at which plantation they were, nor even set them apart for him. It is not necessary to pass on the correctness of the proposition, because the Court considers that the nature of the contract was entirely misapprehended. It is not a contract to deliver specific articles of any kind. On the contrary, the defendant’s engagement is to pay the sum of one hundred and fifty dollars on a certain day, with a proviso that the debt, instead of being paid in money, might be discharged in any good trade, delivered at any one of several certain places. It is in the nature, therefore, of an obligation with a condition, and the burden is, consequently, thrown on the defendant of being the actor, so as to save, him the benefit .of the condition. The plaintiff has the defendant bound to pay the money, unless he shall make the payment in “ trade” as specified, or offer to do it. It laid on the defendant, therefore, to give notice of the place, where he would have the goods, and to have them there, duly set apart for the plaintiff. Then the. plaintiff could have taken them at any time, and they would have been at his risk; while, on the principle, ruled at the trial, the defendant keeps both his money and “ trade” and the whole debt is lost to the plaintiff; a position too unjust to be law.

PeR Cueiam, Judgment reversed, and venire de novo.