Wayne County IL Archives Court.....Curry, George M Borah V Thomas 1850 ************************************************ Copyright. All rights reserved. http://www.usgwarch.org/copyright.htm http://www.usgwarch.org/il/ilfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 18, 2008, 1:43 am Source: Reports Of Cases Written: 1850 George M. Borah, plaintiff in error, v. Thomas Curry and Jas. L. Owen, defendants in error. Error to Wayne. A note given for money, which may be paid in any article of personal property, is not within the statute governing notes payable in personal property other than money; and when the maker of such note elects to discharge it by the payment of the personal property, the property must be tendered at the place of residence of the payee at the time the note was given.(a) This was an action originally commenced before a justice of the peace, and taken by appeal to the Circuit Court of Wayne county. The cause was there tried before Harlan, Judge, and a jury, at March term, 1849, when a verdict was found and a judgment thereon entered for the defendants. The note sued on is set out in the opinion of the court. The bill of exceptions taken in the case, shows that the defendants resided together when the note was given; that when the note became due they had over 400 bushels of corn ready to measure, but no one came to receive it; that the corn was not measured out, but was in cribs with other corn; that about a week before said note became due, Curry hauled one load of corn to the place where Crews, the payee of the note, lived, which he refused to receive, and the corn was hauled back by Curry. Plaintiff below told defendants, he would not receive said corn unless they would haul all the corn to the place where payee lived when note was given, which defendants refused to do. Plaintiff proved that he demanded the corn on the day the note became due: that defendants offered to pay one-half of corn at Crews' and one-half at Owen's, which plaintiff refused, and demanded that it should all be paid at Crews'. The jury found a verdict for defendants; plaintiff moved for a new trial which was denied, and the plaintiff below brings the cause here for review, by writ of error. E. Beecher, for plaintiff in error: The note was made payable at the residence of the payee: R. S., p. 386, sec. 12; 2 Kent's Com., 507-8. There was no tender of the corn. To have constituted a tender, the corn should have been measured out and set apart from other corn, so that plaintiff could see what was his property: 2 Greenleaf's Ev., secs. 600, 609; Chitty on Contract, 727, note 1; 2 Kent's Com., 496, 507-8; 4 Scam., 331; 7 Conn., 110. There was no waiver of the tender. There can be no waiver of tender of personal property other than money. C. Constable, for defendants in error: 1. The place of tender was the debtor's residence or farm, inasmuch as the note was payable in farm produce: 2 Kent's Com., 508; Lobdell v. Hopkins, 5 Cowen., 516; Vance v. Bloomer, 20 Wend., 199; 2 Greenleaf's Ev., sec. 609. 2. A question of tender is a question of fact to be found by the jury, and unless clearly against evidence, their finding will not be disturbed; and if the jury had sufficient evidence before them to satisfy them that the defendants in error offered to deliver the corn as the plaintiff should direct, at their farm, the verdict was right and should not have been set aside: Slingerland v. Morse et al., 8 John., 474. 3. The case has been twice tried by juries, once by a justice, and reviewed and adjudged in effect by the Circuit Court, and the result has always been against plaintiff in error, and this court will not disturb the judgment, inasmuch as the burden of proof was on said plaintiff: Cunningham v. Magoun, 18 Pick., 13; Wheeler v. Shields, 2 Scam., 348; Eldredge v. Huntingdon, 2 Scam., 535; Goode v. Love, 4 Leigh, 635. Trumbull, J. This action was originally commenced before a justice of the peace upon the following note: "On or before the twenty-fifth day of December next, we or either of us promise to pay Nathan Crews forty dollars, which may be discharged in good sound corn at twenty cents per bushel, for value received of him, this eighteenth of April, 1848." The note was subscribed by the defendants, and had been duly assigned by Crews, the payee, to the plaintiff. In the Circuit Court, the defendants had judgment, the correctness of which depends entirely upon the question, whether the makers of the note could discharge it by a tender of the corn at their place of residence, or whether they were bound to take it to the residence of the payee. Both parties resided in the county at the time the note was given, as well as when it fell due. It is insisted on the part of the defendants that corn is a ponderous article, and that, under the statute, they had a right to discharge the note by a tender of the corn at the place where they resided, at the time the note was given. Section 12, chapter 73, Revised Statutes, declares that instruments of writing "for the payment or delivery of personal property, other than money," when no place is specified for the payment or delivery of such property, may be discharged by a tender of the property, at the place of residence of the payee, at the time the instrument of writing was executed: Provided, however, that if the personal property be too ponderous to be removed, or the payee had not a known place of residence in the county at the time the contract was executed, then the property may be tendered, at the place where the maker resided when the contract was entered into. The note in question is not, however, within the statute. It is not a note for the payment of personal property other than money, but a note for the payment of money, with a privilege to the makers to discharge it in corn at a certain price. The right to have the note paid in money or corn, was not left to the payee, but the makers reserved that privilege to themselves. Had corn at the time the note fell due, been worth fifty cents to the bushel, the payee could not have compelled its delivery, while he would have been compelled to take it, if tendered, though its value should fall to ten cents. The note was payable at a particular time, and in such case no demand is necessary to entitle a party to sue. The makers, to have discharged themselves by the payment of the money, would have had to seek the payee, or assignee in this instance, at his place of residence; and there is no reason why they should be allowed to discharge themselves by a tender of the corn, which was a privilege inserted in the note wholly for their benefit, by a tender at a different place from the one where they would have been compelled to tender the money, had the note remained in the hands of the payee. This note is not like the case of a contract payable in trade generally, without time or place, where it was held that a special demand was necessary, and the property deliverable at the residence of the debtor: Woods v. Dial, post, 72. The general rule is, that the person to be discharged from liability upon a contract by the performance of a certain act, is impliedly bound to do the act which is to exonerate him: Chitty on Contracts, 727. It was held in the case of Goodwin v. Holbrook, 4 Wend., 377, that the place of payment of a note payable in salt, was the residence of the creditor, when the time of the payment was fixed by the contract, but the place was not designated. That case is analogous to the present. To have discharged the note, the defendants should have tendered the corn at the time the note fell due, at the place where the payee resided when it was given, and as the record shows that no such tender was made, the verdict of the jury was wrong. Judgment reversed, and cause remanded. Judgment reversed. ---------------------------- (a) A note for a sum certain, payable in personal property, by a certain day, if not paid at maturity, becomes payable in cash: Vanhooser v. Logan, 3 Scam., 389; Smith V. Dunlap, post, 184; Bilderback v. Burlingame, 27 Ill., 338. A note for a sum certain which "may be discharged in pork," is assignable: Thompson v. Armstrong, B. Breese, 48. 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. File at: http://files.usgwarchives.net/il/wayne/court/curry17gwl.txt This file has been created by a form at http://www.genrecords.org/ilfiles/ File size: 8.9 Kb