Burge v. Bigelow

1 Tapp. Rep. 162

• Court: Jefferson County Court of Common Pleas
• Decided: April 15, 1817
• Status: Published

Opinion

President.

By the agreement set forth in this declaration, the plaintiff covenanted to do the carpenter work of a stable and house for the defendant, and the defendant covenanted to pay the workmen employed by the plaintiff at the building, five dollars at the end of every week they might have worked, and to pay the balance that should be due after paying the'ivorkmen, when the building should be finished, one-half in hand, and the other half in six months from the time the buildings should be finished; and the question now is, whether the plaintiff can sustain his action, there having been no demand made of the money previous to bringing this suit ? In the case of Wallis vs. Scott, 1st Strange 88, the plaintiff declared that the'defendant, in consideration the plaintiff would make him a set of sails worth forty-five pounds, promised to pay so much for them upon request; and it was held that a special request need not be averred, for on the making the sails, the money immediately become due, and that it differed from the case when the payment is to be made to a third person, or where an award directs a request. This decision accords with the rule of law laid down in Com. Dig. Pleader, C. 69 — “if the action be for a collateral sum to be paid on request, the request is parcel of the agreement, and traversable, and ought to be specially alledged, with the time and place of the request.”

This agreement was not for a collateral sum to be paid on request, for on the doing of the work the money immediately became due go the extent now claimed. Neither by the express or implied terms, of this contract, was a request to pay money a condition precedent to the^ Pontiffs right of recovery. At the end of each week the ¿.payment of five dollars became a duty which the defendant was bound, by his covenant, to take notice of and perform; gQ ¶-ken the work was finished, no notice was necessary to be given, or demand made, of payment, because the performance of the work, and the consequent indebtedness of the defendant, was not more properly in the knowledge of the plaintiff than of the defendant, and the latter was, therefore, bound to take notice of it, and make payment at his peril.

Motion overruled.