Jouett v. Wagnon

5 Ky. 269

• Court: Court of Appeals of Kentucky
• Decided: July 1, 1811
• Status: Published

Opinion

OPINION of the Court, by

judge Clark.

On the 2d day of March 1805, Jouett by his covenant bound himself to pay Wagnon, on or before the first day of May 1808, six hundred and sixty gallons of good merchantable whiskey, tobe delivered at his stillhouse in Woodford county. On this covenant suit was brought, and on the trial Jouett moved to set aside the writ of inquiry, and offered a plea, in which he states that he was, on the first day of May 1808, at his still-house in Woodford county, ready and willing to pay the whiskey, according to die true intent and meaning of his covenant ; but that neither the plaintiff nor any person authorised attended, with proper vessels to receive the same. The court, conceiving the plea insufficient, would not permit it to be filed, to which the defendant excepted, and prosecutes this writ of error.

When money is to he paid or goods are to be delivered, at a place certain, and upon a day fixed, the obligor has to the last convenient hour of the day to pay the money or deliver the goods ; and if he pleads atender, and that the obligee was not there to receive, the plea ought not only to set forth the dav on which it was made, but the hour he was there for the purpose of making the payment or delivering the goods,: for as the obligor has to the last convenient hour of the day to perform his covenant, it would be unreasonable to compel the obligee to attend from the earliest to the latest hour. The plea offered on setting aside the writ of inquiry in this cause, was materially defective, in not shewing the time of day he was at the place, ready to perform his covenant: for it ought to have appeared he had done all that coukl be done to accomplish what by his covenant he was bound to do. These facts could not have been supplied by proof ; for if issue had been taken on this plea, proof of readiness on the part of Jouett, at any period of the day, would have supported the plea, though he had disposed of the whiskey-before the hour the obligee was bound to attend. That it ought to appear in a plea of tender, that the tender was made at the uttermost convenient hour of the day, see Cro. Jac. 423, Salk. 624, Ld. Raym. 688, and Stra. 777,833. We therefore think the circuit court did right in rejecting the plea. — —judgment affirmed, See.