Lane v. Kirkman

Judge Saffold

delivered the opinion of the Court.

The question presented by the demurrer to the 1st and 2d pleas is, Were the plaintiffs in the action, or the obli-gee, bound to demand payment in cotton, or give notice that payment in that article was required, before the right of action for the money could accrue ? The contract was for the payment of a sum of money at a time stipulated, reserving to the defendant the right of making payment in cotton if he should prefer it. The plaintiffs could not claim payment in cotton, nor was the defendant bound to pay in that article. By the terms of the instrument the election was given to him, and on payment or tender of money, he "would have been absolved from all farther liability. The principle contended for in argument, that in contracts for payment of specific articles, where no place of delivery is mentioned, the residence of the debtor by legal construction is understood to be the place, is believed to be correct ; but the doctrine does not apply to contracts like the present. Here it was for him to determine whether he would pay in cotton or in money, and his determination and preparation to pay in cotton, if such was the fact, rested in his knowledge alone. He was bound to make his election within the time allowed by the contract, and give notice thereof to the creditor; otherwise the obligation to pay money became absolute.

The state of the Record did not require the Circuit Court to remand the cause. All the pleas, except such as liad been demurred to, had been disposed of, and the issues found for the plaintiffs. If the decision on the demurrer was correct, the Circuit Court was authorised by Statute to render final judgment.

As to the 3d and 4th assignments—When it is practicable to supply diminutions of the Record instanter, there can be no objection to doing so ; and after the Record is complete, there can be no Error in refusing to delay the decision of the cause. Let the judgment of the Circuit Court be affirmed.

See Brown and Parsons against Torver, ante, 370.