Robinson v. Batchelder

4 N.H. 40

• Court: Superior Court of New Hampshire
• Decided: February 15, 1827
• Status: Published

Opinion

Richardson, C. J.

The first question to be decided in this case is whether in assumpsit upon a contract to deliver specific articles at a particular time and place the defendant can by law be permitted to give in evidence upon the general issue as an answer to the action, that he was ready at the time and place with the articles and that the plaintiff refused them, when offered to him ?

It is well settled that a tender of money cannot be given in evidence upon the general issue in assumpsit upon a contract to pay money. The reason of this is very obvious. The tender in such a case is no discharge of the debt and no bar to an action. 1 Saund. 33 note 2; Notwithstanding the tender the debt remains.

But upon a contract to deliver specific articles at a pan» ticular time and place, an offer of the articles at the time and place is in law a good excuse for the non-performance of the contract, if the promisee refuse to receive them, and the promisser is forever discharged from all the obligations which the contract imposed upon him. Weld v. Hadley, 1 N. H. Rep. 295.

Chitty says “ it may appear singular that under the general issue which in terms only denies a valid contract the defendant should be permitted to avail himself of a ground of defence which admits a valid contract but insists that it has been performed or that there is an excuse for the non-performance of it, or that it has been discharged ; it is as observed by Lord Holt a practice which has crept in improperly but is now too well settled to be altered.” 1 Chitty's Plead. 472. Chitty therefore seems to have considered it settled that an excuse for the nonperformance of a contract might be given in evidence upon the general issue in assumpsit, and it was expressly so decided to this court in the case of Goldthwaite v. Arms in the county of Cheshire many years since. 1 Wilson 115, it is however customary in such eases to plead the matter in bar. Robbins v. Luce, 4 Mass. Rep. 474, and 5 Johns. 119. But we are of opinion that it may be given in evidence upon the general issue. 13 Johns. 56, Wilt & a. v. Ogden; 8 Johns. 474, Slingerland v. Morse.

In Stafford v. Clark, 2 Bing. 377, it was decided that under the general issue in assumpsit a judgment recovered for the same cause of action might be given in; evidence. 1 Chitty’s Plead. 472.

Another question in this case is, whether the defendant was entitled to show under the general issue that the plaintiff accepted, in February, 1821, a cow with calf in lieu of one of the cows which 'were agreed to be delivered in May ?

On this question there is no doubt. The acceptance of the cow was a satisfaction pro tanto, and the evidence was clearly admissible. Phillip’s Ev. 126; 3 Burr. 1345, Bird v. Randall; 1 Chitty’s Plead. 472; 7 Mass. Rep. 325, Baylies v. Fettyplace.

As to the objection that the tender was not made at the place mentioned in the contract it seems to us to be well settled that a subsequent agreement by parol may he shown to prolong the time of the performance of a written agreement. Phillip’s Ev. 438; 1 Maule & Selwyn, 21, Cuff v. Penn; 3 D. & E. 591; 1 Johns, cases, 22, Keating v. Price; 3 Johns. 528, Fleming v. Gilbert; 8 Johns. 193; 1 Espin. N. P. C. 35, Ratcliff v. Pemberton; 15 Johns. 200, Hasbrouch v. Toppen; 1 Cowen, 249, Erwin v. Saunders.

And we are of opinion that parol evidence was admissible to prove that after the malting of the original contract, it was agreed between the parties that the cows should be delivered at a place different from that mentioned in the contract. We think that the place as well lls tHe time of performance may be varied by a subsequent parol agreement. At least it will in our opinion amount to a waver of a tender at the place. Here it does not appear that the plaintiff at the time objected to the place, where the cow was left, and we think that after agreeing to receive her at a different place from that stated in the original contract, he cannot now object that she was not offered at the proper place.

But it is further objected that although the cow and the calf were at the time appointed at the place, where the plaintiff had agreed to receive them, yet there was no person present who was authorized to deliver them, when the plaintiff went to receive them, or at any time during the day, because Philbriek was only directed to deliver them in case the plaintiff produced and gave up the note, which was a condition the defendant had no right to impose. We are not aware that any good answer can be given to this objection. It is very clear that the defendant had no right to impose such a condition, because the note when paid would not have belonged to him. This point was decided in Todd v. Crookshanks, 3 Johns. 432. The cow and calf ought to have been left to be delivered to the plaintiff, or offered to be delivered without any condition whatever. It therefore seems to us that although the cow and calf were at the place they were not there ready to be delivered to the plaintiff so as to discharge the contract. No person had authority to deliver them unconditionally. No person offered to deliver them. If the plaintiff had taken them without giving up the note he might have been treated as a trespasser. And we are of opinion that a note payable unconditionally in specific articles at a particular time and place is not discharged by having the articles at the time and place unless they are there ready to be delivered absolutely without any condition whatever. As the cdw and calf were not so ready in this case, the contract was not discharged, the jury were misdirected and there must be

Ji new trial granted.