Currier v. Currier

2 N.H. 75

• Court: Superior Court of New Hampshire
• Decided: September 15, 1819
• Status: Published

Opinion

WooDBt/Rr, J.

The pleadings put in issue only the fulfilment of the bond, after the death of the plaintiff’s husband.

That issue has been properly found for the defendant, if he was not obliged to fulfil the bond, either to the plaintiff in person, or at such place as she might appoint. For, otherwise, the house of the defendant appeared to have been a suitable place for her maintenance, and his readiness to support her at such place, would be sufficient without an actual tender of any articles.(l j

This readiness and noticeofit to the plaintiff, in Á.D. 1869, wore distinctly proved at the trial; and after such an unqualified refusal to remove, as she then gave, it was unnecessary to repeat the invitation since her husband’s death.

We feel no disposition to doubt the correctness of the principle, that an obligation, which points out no place of performance, must be fulfilled to the obligee in person, wherever he may chance to be.(3)

But'it is an established exception to this general principle, that when the obligation is not for money, but for articles which are cumbersome, “ as an obligation for ten bushels of “ wheat,” the wheat need not be delivered to the obligee in person, “for that the importableness thereof, shall excuse” the obligor.(3)

“ And so,” says Coke, “ note a diversity between money “ and things ponderous, or of great weight.”(4) But he adds, and the doctrine is generally followed in the books, that these things ponderous must still be delivered at such place as the obligee shall appoint.(5) Yet it must be obvious, that this position, in its utmost latitude, cannot be correct without. destroying all substantial “ diversity” between the two spe-cíes of property ; for the obligee might appoint, as the place of performance, the place where he may chance tobe when the obligation becomes due. Or, what is too unreasonable to be tolerated, he might appoint a place so remote from the residence of the obligor, that the expense of the mere transportation of the articles would exceed the whole price paid for them.

The true rule we apprehend is this, that when the obligation expressly designates noplace of performance, and when none can be inferred from facts contained in the obligation, or from other facts, collateral and independent, which may be proved by parol,(1) the obligee may designate any reasonable place for the delivery of the articles.

But when, from the facts above stated, the place intended by the parties can clearly be inferred, the obligee has no right to appoint a different place.

Thus rent, which, in ancient times, generally consisted of a portion of the produce of the land, might, when no place of payment was expressly named in the lease, be paid or tendered on the land out of which the produce issued.(2) So a bond to make a feoffment was well fulfilled by a tender of a feoffment on the land to be conveyed; because “ the estate “ must pass by livery.”(3)

Thus it must be apparent to every man acquainted with the business of real life, that a contract by a blacksmith to pay a certain sum in his work, when it was proved that he owned a shop in which he was accustomed to labor, ought and must have been intended to be performed at the shop of the promissor. While, on the contrary, if he owned no shop, and labored as a journeyman, and the promissee did own a shop, the inference would be, that the contract was to be performed in labor at the shop of the promissee.

Additional facts might vary the result ⅛ both cases ; and so many additional illustrations will occur to every one, i! is unnecessary to repeat more.

The nature of the support to be furnished by the defendant in the present case, as it must consist of house-room. food, clothing, nursing, attendance, and other things necessary for the comfort of his parents, would make it as “ im- “ portable” as “ ten bushels of wheat.” Hence he was not bound to carry them to the obligee, wherever she might happen to dwell.

We think, too, that the place of performance, contemplated by the parties, is clearly to be inferred from the facts contained in the bond, and from other collateral and independent ’facts offered in evidence.

In most contracts of this description between parents and a child, the parents retain a life-lease, or mortgage interest in the farm they before occupied. The son, also, resides with them, or has sold his property elsewhere, and is about to remove home. The place of performance would then seem to be the house before occupied by the parents.(1)

But in this case, the parents retained no interest in the farm they before occupied. The son was settled in a different town, at a considerable distance, and does not appear to have contemplated a removal. On the contrary, it seems probable, that the land, conveyed by the parents in Chester, was to be sold to discharge their debts and defray the expenses of their maintenance at Sandwich, where the son resided. Because, on the son’s neglect to maintain them satisfactorily, their former farm in Chester was not to re-vest, but the son was to give them a life-lease of fifty acres of his own farm in Sandwich ; that being the place where they all doubtless expected to dwell. The son’s own house in Sandwich, and not the house of a stranger, would seem to be the most natural spot for their maintenance.

The increasing infirmities of life would require the watchful tenderness of filial affection ; and, for aught which appears, the son not only received insufficient property to pay for their board at Chester, or elsewhere ; but must have expected that his parents would prefer to spend with him the remnant of their days, and be re-paid a part of the debt of infancy as he rocked the cradle of their declining age.

Accordingly, his father, who made and who must well have understood the contract, removed to the son’s house, and resided there till his death. The mother passionately refused ; and as the son’s house appears to have been the place of performance, intended at the time the bond was executed, we think she had no right to appoint a different place.

Judgment on the verdict,