The plaintiff held a promisory note against the defendant, dated 28th October, 1829, for the sum of $24,50, payable in neat cattle, at the defendants dwelling
*110house in Album on the first day of October, 1830. At tbs time and place of payment, the plaintiff- was ready to receive the cattle; but at the request of the defendant “ the plaintiff" agreed to defer the payment,” and said, “ he would call another day, and take the cattle.” The case shows, that in a few days after, the plaintiff called at the defendant’s house to tajee the cattle on said note, and there made known his business; but the defendant was not at home to turn out the cattle ; he was at Court on Grand Isle, where the plaintiff" saw him, and told him he had been to his house to take the cattle on the note, as he had agreed. After the plaintiff" gave this information, it was the duty of the defendant to pay the cattle forthwith on the note. If the plaintiff did not call again to take the cattle, and he was not obliged to, the defendant might appoint the time, when he would pay the cattle at his house on the note, and notify the plaintiff of the appointment, and pay accordingly. After such appointment and notice, the payment of the cattle at such time and place would be as good, as if made at the time, and place mentioned in the note. But if the plaintiff did not attend at the time and place, so that payment could be made to him, then a tender of the cattle at the uttermost convenient time on that day would be good. 1 Swifts Dig. 293; Inst. 211.
So, if the defendant chose, he might have driven his cattle to the plaintiff’s house, and if he was at home, there paid, or tendered the cattle on the note. But the defendant adopted no mode of payment, and made no exertion to satisfy the note before he was sued in January, three months after the note became due. We consider this was an unreasonable delay of the defendant to pay the note; and that a cause of action had accrued to the plaintiff on the note before he commenced this suit.
But it v/as contended before the County Court, and it is insisted here, that inasmuch as the plaintiff had declared on his note in the usual way without noticing the agreement to prolong the time of payment; the plaintiff cannot recover. We consider, that if the time of payment, mentioned in any written contract, not under seal, is enlarged by agreement of the parties; in bringing an action on ~.uch contract, it is sufficient to declare, that the payment *111was not made according to the time mentioned in the contract, without noticing the agreement to enlarge the time of payment; and if payment was in fact made according to the enlarged time, the defendant may show it, by pleading specially, the agreement to enlarge the time of payment, and payment accordingly. In the case at bar, we consider the action was rightly brought on the note,' and if the defendant had any sufficient excuse for not paying the note according to its tenor, this shewing should come from him, and not from the plaintiff. 1 Swifts Dig, 288; 2 Day, 408; 15 J. R. 338.
Harrington & Perrigo, for plaintiff. Brown & Bascom & Hazen, for defendant.If the contract in the case had been a specialty it might deserve a different consideration. 3 Ter. Rep. 590 & n.
A majority of the Court are of opinion that the nonsuit should be set aside; and a new trial granted, and it is ordered accordingly.