In the decision of this cause we do not think it necessary to examine particularly all the causes of demurrer which have been assigned by the plaintiff; as we consider one of them as presenting a decisive objection to the plea in bar.
No place being specified in the promissory note declared upon, it was the right of the p;aintiff to name the place for delivery of the articles promised. Co. Lit. 210. 3 Leon. 260.
And he might appoint the place immediately after the note *123was signed, as well as at any other time; because such appointment and notice were for the benefit of the promissors.
Proof of this appointment, therefore, is no'alteration of the contract, within the meaning of the cases cited upon this point, by the counsel for the plaintiff. It is only the addition of a fact, to enable the promissors more conveniently to perform the contract.
We are inclined to the opinion that the plea is defective, as it contains no averment that the defendants, before the day appointed for payment of the note, gave notice to the plaintiff which of the articles mentioned they elected to deliver ;—because, as different places were appointed for the delivery of the articles, it would seem reasonable that the plaintiff should know in season at which of the appointed places he should attend to receive them. A case in Cro. El. 517. appears to support this principle ; but the authorities relative to this point do not appear very clear or precise. We therefore do not give any express opinion on this cause of demurrer, nor profess to decide the cause upon it.
The principal and fatal defect in the plea is, that it does not appear that the defendants had the articles at the respective places appointed and ready to be delivered, at the uttermost convenient time of that day. On this point the authorities are numerous and decisive. Duke of Rutland v. Hudson, 1 Ld. Raym. 686. 2 Stra. 777. Wade's case, 5 Rep. 115. 1 Plowd. 70. 3 Shep. Abr. 2. 3. 4. 5. 2 Chitty's Pleading 499.
The rule in pleading is this ;—the party must allege in his plea those facts which shew that he has done all in his power to perform his contract. If on the day and at the place appointed, the debtor meet his creditor, at hour of the day, he may tender the money or article which he promised ;—and if the creditor refuse it, he can do no more than keep the money ready, and bring it into Court when sued. If the creditor do not attend at the time and place appointed, the debtor must still do all in his power to perform the contract; he must have the money or articles promised in readiness to be paid or delivered to the creditor; and if he do not appear, the debtor must remain there during the day, in person or by agent, and to the uttermost convenient time of the day, that is, till after sun*124set, waiting for the creditor ; and having done this, he can do no more except retain the money for the purposes before mentioned.
Such is the distinction between the cases where the creditor appears, and where he docs not appear, at the time and place appointed. And this distinction runs through all the cases on the subject. It is founded in plain common sense, and substantial justice, as the rules and principles of special pleading generally are.
In the plea under consideration, it is not stated that the articles promised were procured by the defendant, and kept ready at the time and places appointed, until the uttermost convenient time of the day of payment, and on this account the plea is defective. It may be that the defendant had the articles at the time and places at sunrise, and not afterwards ; and still the plea would be true;—but the plaintiff had the whole day to receive the articles in, and of course the defendant ought to have been ready the whole day to deliver them.
Jt is said that a different opinion is given by the Court in the case of Robbins v. Luce, 4 Mass. 474. But upon examination it will be found that the two cases are not precisely similar. In that case, the demurrer to the plea in bar was general;—here it is special. There the defendant averred that “ always since giving the note, and particularly on the 20th day of September (the day appointed) he had, and still has the barrels ready at his house, to deliver,” &c. This averment amounts to a declaration that he had the barrels all the day appointed. It is important to notice the observation of the Court. They say that if the defendant had gone on, and averred that the plaintiff was not there to receive them, the plea, if true, would be a good bar, and well pleaded. But they considered the want of that averment as a mailer of form, and not being assigned as a cause of demurrer, they were inclined to sanction the plea as containing a substantial fact, viz: the possession of the barrels at the time and place appointed, and a readiness to deliver them ; and this fact being admitted, was allowed as a bar to the action.
On the whole, we arc ail satisfied that, for the reasons stated, the
Plea in bar is insufficient'