Jefferson County IL Archives Court.....Dial, James Woods V David 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 19, 2008, 6:20 am

Source: Reports Of Cases
Written: 1850

James Woods, plaintiff in error, v. David Dial, for the use of John Williams, 
defendant in error.

Error to Jefferson.

The statute regulating the place of delivery of personal property, in certain 
cases where the contract is in writing and payable at a particular time, 
without designating the place of delivery, has no application to a contract 
not in writing.

A contract payable "in trade," without time or place for payment, is payable 
on demand, or within a reasonable time thereafter, according to the nature of 
the thing demanded.

The promisee of such a contract should make a demand at the residence or place 
of business of the promisor, and notify him what kind of trade he is ready to 
receive, and if he seeks to enforce the payment of the contract in money, he 
should show that he has made a proper demand, or some excuse for not having 
done so.(a)

In the absence of all testimony to show where the contract was made, or where 
the parties resided, the presumption is that they resided in the county where 
the action was instituted.(b) But if it be shown that the debtor had no fixed 
place of residence, or of doing business, or was a non-resident, the rule 
governing the demand would be different, and in some cases the demand would be 
wholly dispensed with. 

The promise in such a contract undoubtedly has the right to select the kind of 
trade he would receive, confining himself, however, to such articles as the 
parties had in view at the time of the making of the contract, and to the 
pursuit or business of the promisor.

Where the promisor in such a contract was a merchant, the promisee would be 
confined to such articles as the promisor usually traded in, and the place of 
demand and delivery would be at the place of business of the promisor. If the 
promisor was a farmer, the promisee would be confined to farm produce, to be 
demanded and delivered at the farm of the promisor.

This was an appeal from a justice of the peace to the Circuit Court of 
Jefferson county.

The facts of the case are fully set out in the opinion of the court. The cause 
was heard before Denning, Judge, and a jury at the August term, 1850, of the 
Circuit Court, and resulted in a verdict for the plaintiff, and a judgment for 
$40 and costs. A motion for a new trial was overruled. A bill of exceptions 
was taken, and the defendant below brought the case to this court by writ of 
error.
 
W. B. Scates and R. F. Wingate, for plaintiff in error.

S. Breese and L. F. Casey, for defendant in error.

Trumbull, J. This record shows that Woods agreed with Dial to give him forty 
dollars in trade for his improvement on congress land—Dial to keep possession 
of the place for one year—that he left the premises in the spring, and brought 
suit for the forty dollars, for which he had judgment.

The agreement was by parol, and the evidence of its terms, as shown by the 
record, is exceedingly meagre. Neither the kind of trade, the time or place 
for its delivery, the residence of the parties, except that one of them 
resided on congress land, nor the business that either followed appears in the 
case. The Circuit Court refused to instruct the jury that proof of a demand 
was necessary to entitle the appellee to recover.

The courts have felt some difficulty in construing contracts of this 
character, and their decisions are somewhat conflicting.

In this state, we have a statute regulating the place of delivery of personal 
property in certain cases, when the contract is in writing and payable at a 
particular time. The statute, however, has no application to this case, as the 
contract was not in writing.

When the contract is payable in trade generally, and no time or place is 
specified for its delivery, it is but reasonable that the promisee, before 
bringing suit, should notify the promisor what kind of trade he will have, and 
when he is ready to receive it, or show some excuse why he has not done so.

A contract payable in trade without, time or place, is payable on demand, or 
within a reasonable time thereafter, according to the nature of the thing 
demanded. Upon a contract payable in farm produce, it was held in the case of 
Lobdell v. Hopkins, 5 Cowen 516, that a special demand was necessary. The case 
of Vance v. Bloomer, 20 Wend., 196, is to the same point.

We are disposed to adopt the rule as settled in New York, and hold that a 
special demand was necessary in this case.

In the absence of all testimony to show where the contract was made, or where 
the parties resided, the presumption is, that they resided in the county where 
the suit was brought. In such case the demand should be made at the debtor's 
residence or place of doing business. If he had no fixed place of residence or 
doing business, or was a non-resident, the rule would be different and perhaps 
in some instances the demand might be dispensed with.

The creditor in this case undoubtedly had the right to select the kind of 
trade he would have, confining himself, however, to such articles as the 
parties had in view at the time of making the contract. If the case showed 
that the debtor was a merchant, there could be no question that the creditor 
would be confined in his selection to such articles as his debtor usually 
traded in, and that he would be bound to make the demand and receive the goods 
at his store, and at the usual prices: 2 Kent's Com., 505; 2 Greenleaf Ev., 
sec. 609.

The subject matter of the agreement is however the only circumstance that 
appears in this record, from which to ascertain what the parties meant by 
trade. In such a case, the custom and usage of those who enter into similar 
contracts ought to govern its construction.

A debtor who wished to discharge such a contract, would have the right to call 
upon his creditor to select the property and name a time and place for its 
delivery, and upon his failure to do so, it would then be the right of the 
debtor to select property subject to the same restrictions as the creator 
would have been under, had he made the selection, and tender the same at some 
reasonable time and place in discharge of his obligation.

As the case will have to be reversed, on account of the refusal of the court 
to instruct the jury that a special demand was necessary, and it is probable 
that further testimony will be adduced upon another trial, it is unnecessary 
to pursue this discussion further.

Judgment reversed, and cause remanded.

Judgment reversed.

-------------------------
(a) See McPherson v. Gall, 40 Ill., 368; McPherson v. Hall, 44 Ill., 264; 
Marshall v. Gidley, 46, Ill., 247.

(b) A defendant will be presumed to reside in the county where he was served: 
Goldie v. McDonald, 78 Ill., 605; Honore v. Home Nat. Bk., 80 Ill., 489.


Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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