The appellee, who was the plaintiff, brought this action against Pratt & Co., alleging, in his complaint, that the defendants, on March 10,1858, by their note of that date, promised to pay Bowser & Story $201, out of the mill and warehouse of the defendants, as they, Bowser & Story, should order it; and that said Bowser ds Story afterward, &c., assigned the note to the plaintiff.
It is averred that after the assignment on March 26, 1858, the plaintiff demanded and ordered payment of the defendants, out of their mill and warehouse; but they refused to pay, &c. A copy of the note was filed with the complaint, and reads thus: “ Fort Wayne, March 10, 1858. Due Bowser & Story 201 dollars, to be paid out of the mill and warehouse, as said Bowser & Story may order it.” (Signed) "Pratt & Co.”
Defendants answered by eight paragraphs. The first is a general traverse; demurrers were sustained to the second, third, fifth, and eighth; and upon the fourth, sixth, and seventh issues were made. The Court tried the cause, and found for the plaintiff; and, having refused a new trial, rendered judgment, &c.
The errors assigned, so far as they are noticed in the appellant’s brief, relate: 1. To the sufficiency of the complaint; 2. To the action of the Court upon the demurrer to the third paragraph of the answer; and 3. To the refusal to grant a new trial.
As has been seen, the note promises to pay “out of the mill and warehouse, as the payees may order,” without designating the particular mill and warehouse out of which payment was to be made. Hence, it is argued that the note is ambiguous; and, being so, the complaint is defective, because it fails to aver extrinsic facts sufficient to explain the ambiguity. This position is not well taken. It is averred, “ that *3the note was to be paid out of the mill and warehouse pfuie defendants, and that the plaintiffs demanded and such payment, and they refused to pay,” &c. The averment thus made, it seems to us, renders the complaint a cause of action. It explains the ambiguity, by showing that the mill and warehouse of the defendants were intended by the contract. And if, as alleged, they refused to pay on demand, the plaintiff’s right of action at once accrued.
The third paragraph of the answer alleges, “ that defendants, at all times since they made the note, have been, and still are, ready and willing to discharge it, at their mill and warehouse, with such chattels as they have therein for vending purposes.” This is not a valid defense to the action. As we construe the note, the plaintiff was entitled to payment in such articles of property, the usual manufacture of the mill, or usually kept in the warehouse, as he might elect to receive. 2 Phil. Ev. 4 Am. Ed. p. 746, note 1. For aught that appears in the defense, the defendants may have been ready, &c., to discharge the note, in articles of-property of their own choice, and not in such as the plaintiff elected to receive in payment. To render the defense effective, it should have averred that the defendants were ready, &c., to pay the note “ out of the mill and warehouse,” in such property therein for vending purposes” as the plaintiff should order, and that the plaintiff had not attended at the place of payment and given such order. Chipman on Cont. 101.—Johnson v. Baird, 3 Blackf. 182.
Upon the trial, the plaintiff gave in evidence the note with the indorsement, and then produced a witness, who testified that “ he called on the defendants, at their warehouse, with the note, and demanded its payment of them in flour; when they replied that they had no flour then on hand.’ ” At the time of this demand, there appeared to be a large quantity of other goods in the warehouse; but to whom tliey belonged, witness did not know. This was all the evidence. 'Was it sufficient to sustain the verdict? The evidence allows the inference, that the person who made the demand, having the-note in his possession, was the authorized agent of the plain-*4by the defendants: and from their reply to the demand “of payment in flour,” it may be readily inferred that that was one of the articles usually manufactured in the mill, or usually kept * *ke warehouse. But it is said, that the evidence was unauthorized by the averments in the complaint. We think otherwise. The reply of the defendants to the demand, viz: “ that they had no flour then on hand,” without an offer to pay in other property, or in the article demanded, at some subsequent reasonable time, was, in effect, a refusal to p>ay the note. The court, sitting as a jury, has so construed the facts presented by the evidence, and we are not inclined to disturb its conclusions.
William S. Smith, William M. Orane, P. P[. Oolerioh, and L. M. Ninde, for the appellants. M. Jenltinson, for appellee. Per Choriam.The judgment is affirmed, with 5 per cent, damages and costs.