Bell, J.
The language used by the witness, Cate, is colloquial, and is to be understood by us as it would be if used in common conversation; and so understood, it imports that the parties said, as he understood them, that Miles held a note against Roberts, payable in grain, and then due; and that Roberts had sent for Miles to come and receive the grain, which Roberts said was now ready for him. So understood, the evidence was free from objection. It was, however, merely introductory. The facts thus stated did not appear to be in any way in controversy, and the really material parts of the evidence are stated distinctly and directly.
It was competent for the parties, at any time before the contract was broken, to change the place of delivery, if one was agreed upon by a subsequent agreement. It cannot be necessary to cite authorities to such a point. See Rhoades v. Parker, 10 N. H. 83; Flagg v. Dryden, 7 Pick. 52.
We therefore understand the objection taken in the case to rest on the principle that parol evidence cannot be introduced to vary the construction of a written instrument, which is also too familiar to need any reference. The question then was, whether the evidence as to this point was to be regarded as interpolating [253]*253a new place of payment in the note, as a part of the original agreement, or merely as evidence of a new agreement and understanding as to the place of delivery of the grain, to which they had then come. And the evidence strikes us as proving that the contract, being deficient in apparent distinctness as to the place of delivery, it then became a subject of discussion, how the contract was to be performed in this respect; and the parties, upon the subject being referred to, agreed in their idea of the contract, that it required the delivery to be made at Roberts’ house. Now it was immaterial what was the legal construction of the terms used, since the parties then agreed the contract was to be performed at Roberts’ house. The parol agreement to which the parties then came was sufficient to change the contract expressed in or inferable from the note, which, though in writing, was at most a parol contract. The language used by the witness is indefinite as to the time referred to by the parties. It admits of being understood as referring to the original understanding of the parties when the note was given, though that does not seem to us either natural or probable. There was no occasion to refer to any time past. But if they did refer to their original understanding, the whole evidence shows that it was also their understanding at the time of speaking. Their conduct cannot be explained upon any other idea. Their admission as to them present understanding cannot be rendered incompetent by the reference to the idea they originally had.
The principles which govern the construction of contracts for the delivery of specific articles are in general well settled, while their application to particular cases is often attended with difficulty.
The contract is to be considered in connexion with all its attendant circumstances, and the place of delivery is to be inferred from the nature of the contract, and of the articles to be delivered; from the situation of the parties, and from any other circumstances from which the court may reasonably infer the intention of the parties. Whatever may be thus reasonably inferred is regarded as if it was expressed in the contract itself.
[254]*254Upon this principle it has been held in New-Yoi’k and other States, that in case of a contract by a merchant to deliver goods; Lobdell v. Hopkins, 5 Cowen 518; or by a mechanic for his wares, Ib.; Rice v. Churchill, 2 Denio 145; Craft v. Hurtz, 11 Miss. 109; Jacoby v. Schwartzwelder, 1 Bibb 430; Mountjoy v. Adair, 1 Smith 196; Goodwin v. Holbrook, 4 Wendell 380; Wilmarth v. Patton, 2 Bibb 280. Or by a farmer to pay in produce; Lobdell v. Hopkins, 5 Cowen 518; Lafarge v. Rickart, 5 Wendell 187; M’Killip v. M’Killip, 8 Barb. 552. They are to be presumed to be performed at their places of business, their shops, factories, or farms.
If this presumption is adopted here, the idea of these parties as to the place of payment of this note would be agreeable to the legal construction of the instrument, and the evidence would of course be wholly immaterial. This point it is not now necessary to decide, since the attention of the parties has not been directed to it in the argument, and the cases decided here do not support this view. Flanders v. Lanfear, 9 N. H. 201; Rhoades v. Parker, 10 N. H. 83; Holmes v. Fisher, 13 N. H. 1, and see Wilder v. Whittemore, 15 Mass. 262. But if this were held otherwise, and it was held that no place of payment could be inferred from the note itself, or any circumstances connected with it, then, if the articles are of a portable character, they are to be delivered to the creditor, like a payment in money.
If the articles are bulky and cumbersome, it is the duty of the debtor to seek the creditor, and learn from him where he wishes them to be delivered, and upon the creditor designating a reasonable place, to deliver them at that place. Co. Litt. 210, b; Cro. El. 48; Currier v. Currier, 2 N. H. 75; Flanders v. Lanfear, 9 N. H. 201; Slingerland v. Moore, 8 Johns. 474; Lafarge v. Rickart, 5 Wendell 187, and cases cited; Mason v. Briggs, 16 Mass. 453; Aldrich v. Albee, 1 Greenl. 120; Bean v. Simpson, 4 Shep. 31; 2 Kent’s Com. 507; Stor. Con. 319.
If the creditor cannot be found, if he refuses to appoint any place, or, which is much the same, to appoint a reasonable place, [255]*255tbe debtor may bimself select any suitable and reasonable place, and a delivery there, with notice to the creditor, if he can be found, will discharge the contract. Same authorities.
His responsibility, if he remains further liable, will be merely that of a bailee. 2 Kent’s Com. 509.
The transaction testified to by Cole, to whose testimony exception is taken, may well be regarded as substantially of the character required by the rule, where no place is expressly or impliedly designated. The parties had come together at the request of Roberts, for the purpose of settling the note and receiving the grain. The enquiry is made by Roberts of Miles, where he understands the grain is to be delivered, and he declares he understands it is to be at Roberts’ house, and his readiness to receive it there. He went up stairs to see if the grain would answer the contract, and on being asked if it was sufficient to answer the contract, said it was, and talked of taking it away at another day. This evidence was competent to prove that the plaintiff, being applied to to designate a place for the delivery of the grain, then appointed Roberts’ house as the place, and that he then accepted it there.
The charge of the court on the subject of the agreement as to the place of delivery was correct and proper. There was no call on the court to give any instruction to the jury as to the place of payment, since, whatever might be the place appointed by the law for such payment, it was effectually changed by the agreement of the parties, and by that agreement they were thenceforth bound.
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Bell, J.
The language used by the witness, Cate, is colloquial, and is to be understood by us as it would be if used in common conversation; and so understood, it imports that the parties said, as he understood them, that Miles held a note against Roberts, payable in grain, and then due; and that Roberts had sent for Miles to come and receive the grain, which Roberts said was now ready for him. So understood, the evidence was free from objection. It was, however, merely introductory. The facts thus stated did not appear to be in any way in controversy, and the really material parts of the evidence are stated distinctly and directly.
It was competent for the parties, at any time before the contract was broken, to change the place of delivery, if one was agreed upon by a subsequent agreement. It cannot be necessary to cite authorities to such a point. See Rhoades v. Parker, 10 N. H. 83; Flagg v. Dryden, 7 Pick. 52.
We therefore understand the objection taken in the case to rest on the principle that parol evidence cannot be introduced to vary the construction of a written instrument, which is also too familiar to need any reference. The question then was, whether the evidence as to this point was to be regarded as interpolating [253]*253a new place of payment in the note, as a part of the original agreement, or merely as evidence of a new agreement and understanding as to the place of delivery of the grain, to which they had then come. And the evidence strikes us as proving that the contract, being deficient in apparent distinctness as to the place of delivery, it then became a subject of discussion, how the contract was to be performed in this respect; and the parties, upon the subject being referred to, agreed in their idea of the contract, that it required the delivery to be made at Roberts’ house. Now it was immaterial what was the legal construction of the terms used, since the parties then agreed the contract was to be performed at Roberts’ house. The parol agreement to which the parties then came was sufficient to change the contract expressed in or inferable from the note, which, though in writing, was at most a parol contract. The language used by the witness is indefinite as to the time referred to by the parties. It admits of being understood as referring to the original understanding of the parties when the note was given, though that does not seem to us either natural or probable. There was no occasion to refer to any time past. But if they did refer to their original understanding, the whole evidence shows that it was also their understanding at the time of speaking. Their conduct cannot be explained upon any other idea. Their admission as to them present understanding cannot be rendered incompetent by the reference to the idea they originally had.
The principles which govern the construction of contracts for the delivery of specific articles are in general well settled, while their application to particular cases is often attended with difficulty.
The contract is to be considered in connexion with all its attendant circumstances, and the place of delivery is to be inferred from the nature of the contract, and of the articles to be delivered; from the situation of the parties, and from any other circumstances from which the court may reasonably infer the intention of the parties. Whatever may be thus reasonably inferred is regarded as if it was expressed in the contract itself.
[254]*254Upon this principle it has been held in New-Yoi’k and other States, that in case of a contract by a merchant to deliver goods; Lobdell v. Hopkins, 5 Cowen 518; or by a mechanic for his wares, Ib.; Rice v. Churchill, 2 Denio 145; Craft v. Hurtz, 11 Miss. 109; Jacoby v. Schwartzwelder, 1 Bibb 430; Mountjoy v. Adair, 1 Smith 196; Goodwin v. Holbrook, 4 Wendell 380; Wilmarth v. Patton, 2 Bibb 280. Or by a farmer to pay in produce; Lobdell v. Hopkins, 5 Cowen 518; Lafarge v. Rickart, 5 Wendell 187; M’Killip v. M’Killip, 8 Barb. 552. They are to be presumed to be performed at their places of business, their shops, factories, or farms.
If this presumption is adopted here, the idea of these parties as to the place of payment of this note would be agreeable to the legal construction of the instrument, and the evidence would of course be wholly immaterial. This point it is not now necessary to decide, since the attention of the parties has not been directed to it in the argument, and the cases decided here do not support this view. Flanders v. Lanfear, 9 N. H. 201; Rhoades v. Parker, 10 N. H. 83; Holmes v. Fisher, 13 N. H. 1, and see Wilder v. Whittemore, 15 Mass. 262. But if this were held otherwise, and it was held that no place of payment could be inferred from the note itself, or any circumstances connected with it, then, if the articles are of a portable character, they are to be delivered to the creditor, like a payment in money.
If the articles are bulky and cumbersome, it is the duty of the debtor to seek the creditor, and learn from him where he wishes them to be delivered, and upon the creditor designating a reasonable place, to deliver them at that place. Co. Litt. 210, b; Cro. El. 48; Currier v. Currier, 2 N. H. 75; Flanders v. Lanfear, 9 N. H. 201; Slingerland v. Moore, 8 Johns. 474; Lafarge v. Rickart, 5 Wendell 187, and cases cited; Mason v. Briggs, 16 Mass. 453; Aldrich v. Albee, 1 Greenl. 120; Bean v. Simpson, 4 Shep. 31; 2 Kent’s Com. 507; Stor. Con. 319.
If the creditor cannot be found, if he refuses to appoint any place, or, which is much the same, to appoint a reasonable place, [255]*255tbe debtor may bimself select any suitable and reasonable place, and a delivery there, with notice to the creditor, if he can be found, will discharge the contract. Same authorities.
His responsibility, if he remains further liable, will be merely that of a bailee. 2 Kent’s Com. 509.
The transaction testified to by Cole, to whose testimony exception is taken, may well be regarded as substantially of the character required by the rule, where no place is expressly or impliedly designated. The parties had come together at the request of Roberts, for the purpose of settling the note and receiving the grain. The enquiry is made by Roberts of Miles, where he understands the grain is to be delivered, and he declares he understands it is to be at Roberts’ house, and his readiness to receive it there. He went up stairs to see if the grain would answer the contract, and on being asked if it was sufficient to answer the contract, said it was, and talked of taking it away at another day. This evidence was competent to prove that the plaintiff, being applied to to designate a place for the delivery of the grain, then appointed Roberts’ house as the place, and that he then accepted it there.
The charge of the court on the subject of the agreement as to the place of delivery was correct and proper. There was no call on the court to give any instruction to the jury as to the place of payment, since, whatever might be the place appointed by the law for such payment, it was effectually changed by the agreement of the parties, and by that agreement they were thenceforth bound. Nor was it of any importance at what time the parties first came to a common understanding as to the place of payment. It might have been at the time of the original contract, or at any time afterwards. There is no attempt here to rely on any contract, original or subsequent, except the agreement made at Roberts’ house, as testified to by Cole. If the parties then agreed in their understanding that the payment was to be at Roberts’ house, they are bound by that agreement, and the tender of the grain at that place, or its delivery, or acceptance there, would discharge the contract. So if the place of [256]*256payment was agreed on, and the defendant had the grain ready to be delivered, and the plaintiff was there to receive it, saw it, and declared himself satisfied of its quality and quantity; that might well be considered as sufficient evidence of an acceptance by which the note would be discharged and the grain would be his.
If no more appeared than that the payment was agreed to be made at Roberts’ house, and Roberts had there the grain ready to be delivered at that place, seasonably, in the month of November, to enable the plaintiff to take it away, and notified the plaintiff of that fact, and requested him to take it away, this would constitute a sufficient tender to discharge the contract.
It is too clear to be questioned that if a legal tender of the grain was made at the time and place of performance agreed upon, this would discharge such a contract, whether the tender was accepted or not. It is not necessary here to enquire what effect such a tender would have upon the title of the property, though there are strong analogies in the law which might induce a court to hold that- upon such a tender the property of such articles would cease to belong to the debtor, and would vest in the creditor. 2 Kent 509. It has been often held that a party in whose possession the property of another, previously rightfully in his hands, is left, becomes defacto a bailee, and bound to take care of the property as a depositary; and it seems to be on this principle that a tender of money, to be available as a defence, must be accompanied with a profert of the money in court.
The third exception, that the new contract, alleged to have been made between these parties for the carriage of the grain to Heywood’s, who had the custody of the note, was a waiver of the previous tender, or payment, seems entirely without foundation. That contract was precise and definite, and no necessity exists for giving to it any other than its ordinary effect. No presumption of an intention to give it this effect can be entertained, since it would be unusual, and out of the ordinary course of business. We are not aware of any decision which holds that a payment may not be cancelled by agreement of the parties, so as to leave the contract unaffected; but if such [257]*257effect has ever been allowed, it must have been in some exceptional case, since tbe ordinary rule is, that by payment tbe contract is wholly discharged, and thenceforth functus officio, and in those cases where it has been held that a note may be reissued, it is regarded rather as a new contract than a revival of the old.
And the charge was correct, that if a new contract was made, it ought to be declared upon, and the plaintiff cannot recover upon a new contract in a declaration upon the old. There may be some exceptions to the general rule in the case of new promises under the statute of limitations, but the present case falls within none of them.
Judgment on the verdict.