Lobdell v. Hopkins

5 Cow. 516

• Court: New York Supreme Court
• Decided: May 15, 1826
• Status: Published

Opinion

Curia, per Savage, Ch. J.

On the merits, the only question is, was a demand necessary before action brought ?

The note declared on refers to another contract, which, if produced, might have shown a time and place of payment ; and perhaps a specific mode; but the note, unexplained, amounts to a note payable in specific articles without time or place ; and the want of time renders it payable on demand. On such a note, a special demand is necessary. (Smith v. Leavensworth, 1 Root, 209. Bach v Owen, 5 T. R. 409. Chandler v. Windship, 6 Mass. Rep 310. Benners v. Executors of Howard, Tayl. Rep. N. C. 149.)

The question has also been examined, by the counsel for the defendant, where this demand should be anade ? Mr. Chipman in his valuable treatise, says, “ If the note be payable in specific articles, on demand, and no place of payment be designated, the debtor’s place of residence is the place of payment, and the payment must be there demanded.” (Chipm. Tr. 49, and vid. id. 28-9.) This case is analogous to that of a due bill without time or place, given by a merchant for goods, or a mechanic for work. Surely the goods must be demanded of the merchant at his store, or of the mechanic at his shop, before a suit can be sustained. The instrument in question is payable by a farmer in farm produce. Certainly there should have been a demand at the debtor’s farm.

Judgment affirmed,

(a)

Where a contract is made or the delivery of property, and the debtor has a known place of residence within the state, a demand of the property must be made there. (Chambers v. Winn, Prin. Dec. Kentucky, 192.) On contracts for the delivery of property, where no place is expressed, the usual residence of the obligor is the place of performance; and where no place is named, and the property is to be delivered on request, a special request at the obligor’s residence must be averred. (Wilmouth v. Patton, 2 Bibb’s Kentucky Rep. 280.) Where one contracts to deliver specific articles on demand, he should bo always ready at his dwelling house, or place of business. If he be absent, a demand of his wife has been held sufficient. (Mason v. Briggs, 16 Mass. Rep. 453.)