Grieve v. Annin

6 N.J.L. 562

• Court: Supreme Court of New Jersey
• Decided: November 15, 1798
• Status: Published

Opinion

Kinsey, 0. J.

This is an action of debt on a bond conditioned to pay £391 5s. in good leather, at Albany, on the 15th October, 1796, at fixed prices, and the different kinds in certain proportions. The defendants have pleaded payment.

Under this plea, they offered to prove — 1. That at the day stated in the condition of the bond, they actually tendered ■the'leather which they had undertaken to furnish, at the time agreed upon, and that it was refused by the plaintiffs.

2. That the price fixed in the bond, as that at which the leather was to be received, exceeded the current market price at the time, and therefore the damages should be proportionably diminished.

The question, as to the admissibility of this evidence upon this state of the pleadings, seems to be incumbered with little difficulty. The rule of law is clear and explicit, that the evidence offered on the part of a defendant must always correspond with the defence stated in the pleadings. This rule is wholesome and necessary, and no circumstances-of apparent hardship will, in any case, authorize a departure from its strict letter, or any abatement of its rigor. ' The plea, then, is payment at common law, as a performance, and consequently a discharge of the bond, an absolute. bar to' the action ; tender can in no instance be so considered.

* So far from being a bar to the action, or discharge of the debt, it is an express acknowledgment of a subsisting right to demand, and of an obligation to pay. It goes only in bar of damages subsequent to the refusal; it is pleaded with an uncore prist, and the money must be brought into court. It must be pleaded, and can in no instance be admitted in evidence under the general issue. It is an issuable fact, and the party against whom it is to operate ought always to have notice, that he may come prepared to controvert the fact. This evidence, then, was properly overruled.

As to the second point. There are two facts which appear distinctly in the case: first, that the defendants were indebted to the plaintiffs £391 5s.; second, that the plaintiffs agreed, in satisfaction of the debt, to receive a certain quantity of leather at a fixed price. The defendants, therefore, had their election on the day specified, to make a tender of the leather, agreeably to the terms of the contract. If it had borne a higher price, the plaintiffs, we think, would, under the circumstances, have been precluded front enforcing their claim for more than the amount of the money; if the market price was less, the right still existed for the money, if the leather was not paid. If may be, that the market price continued the same as at the time of making the contract; that the plaintiffs might have occasion for that quantity of leather at the time mentioned, and, in order to ensure its being there, might have found it advantageous to be satisfied with paying more than the current price of the article.

Be this, however, as it may, as the leather was not delivered agreeably to the undertaking, the right of election, on the part of the defendants, ceased. It would be, indeed, a most singular construction of this agreement, to allow the defendant to omit the payment of both the money or the leather at the time, and then to demand an abatement of the debt, on the ground that he might have furnished leather at a lower price. There is no mutuality in such a construction of the instrument, and certainly as little equity.

The defendants had their option to pay the money or the leather at the stipulated time and place. If the leather had been legally tendered, and refused without an adequate I'eqson, consequences would have rested on the plaintiffs, and by pursuing a proper course, the right to bring this action would have been defeated. The parties have made their own contract; they have expressed it in their own words, and the language admits of a legal and explicit construction; the court have no authority to alter its terms and create an obligation to which no assent was ever given.

It would be almost superfluous to cite authorities to warrant so reasonable a rule of construction as we have given ; but there is a short report of a case in Bro. Abr. title Debt, pi. 159, so perfectly analogous that we may refer to it as authoritative.- One had undertaken to pay £20, or deliver twenty bales of wool. The obligee demanded the money, and it was held that before the day fixed for payment, the obligor had his election to pay either; after the day, without any tender being made, the obligee might demand the money. The principles of the cases are precisely similar. There are no grounds of reason or equity, nor any principle of law on which this application for an abatement can be supported. The evidence, therefore, on this point also was properly overruled, and there must be

Judgment for the plaintiffs.

See the case of Alcorn v. Westbrook, where it was held, that a tender on the one side, and a refusal to accept on the other, were, in point of law, equivalent to payment. 1 Wits. 116; Phil. Ev. 154.