Duerson v. Bellows

1 Blackf. 217, 1822 Ind. LEXIS 35

• Court: Indiana Supreme Court
• Decided: November 9, 1822
• Status: Published

Opinion

Blackford, J.

Debt upon a writing obligatory against Duerson and others, for the payment of 500 dollars, lawful money or good current paper, on or before the first of January, next ensuing the date of the obligation. Judgment for the plaintiff below by default.

It is contended by the plaintiffs in error, that covenant was the proper action, and that debt will not lie in a case like the present.

This contract being in the disjunctive, the obligors, as the first agents, had an election to discharge the obligation by paying the amount at the day when due, either in lawful money or good current paper, according to their own interest or convenience

(1). But when the time fixed on for the payment was past, the privilege of election belonged to the obligee, and he then had the right to choose for which he would bring his action. Co. Litt. 145. In the present suit, the plaintiff below goes for the lawful money mentioned in the obligation, assigning as a breach the non-performance of either part of the contract; he was justified by the law in doing so, and the action of debt was his proper .remedy.

The judgment, in this case, is rendered for current paper tnoney, and must he for that reason reversed.

Per Curiam.

The judgment is reversed, with costs, Cause reí manded, with directions to the Circuit Court to render judgment in favour of the plaintiff there, for the debt in the declaration "mentioned, with damages and costs, in the ordinary form.

Thompson and Naylor, for the plaintiffs. Howk, for the defendant.

An action of debt was brought on a custom-house bond, penalty 7,00® dollars, conditioned to pay on or before a certain time, 3,500 dollars, or the amount of duties to be ascertained as due on certain goods imported, &c. The duties on the goods were afterwards found to amount to 6,000 dollars. At the day on which the bond became due, the defendant tendered to the collector the sum of 3,500 dollars, in discharge of the condition, which was refused. Held, that the tender was good; — that, by the general rule of law, if the condition of an obligation he in the disjunctive, it maybe discharged by the performance of either of the enumerated acts, at the election of the obligor, the condition being for his benefit; — that, in this case, the defendant was entitled to the benefit of the alternatives stated; — and that, by his complying with either, the bond was discharged, U. States v. Thompson, 1 Gall. 388. S. P. U. States v. Carlton, Ibid. 400.

The person who is to perform one of two things has the right to elect. Per Ld. Mansfield, in Layton v. Pearce, Doug. 14. If the performance of one of the two parts iii the disjunctive, be prevented by the act or fault of the obligee, the bond is discharged. 2 Ev. Poth. 47. And such has been held to be the law, where one of the parts becomes impossible by the act of God; Laughter's case, 5 Co. R. 22: sed vide 2 Ev. Poth. 46, 47, where this case in Coke is cited and commented on.