Russell v. McCormick

45 Ala. 587

• Court: Supreme Court of Alabama
• Decided: January 15, 1871
• Status: Published

Opinion

B. F. SAFFOLD, J.

There is no doubt about the' equity of the bill. The land proceeded against is that for which the money was due, and no cause is shown why the vendor’s lien does not attach.

The chief issue between the parties is the correctness of the decree ascertaining the complainant’s demand in coin. The obligation of the debtor was to pay half of what is unpaid in cotton at twenty cents a pound, or coin, at his option, and the other half in the same way, at the option of the creditor, by a specified time. In Lane v. Kirkman, Minor, 411, where a note for a specified sum of money was payable on a day certain, but might be discharged with cotton at the market price, it was held that the plaintiff was not bound to demand the cotton, but the defendant should have made his election within the time allowed by the contract, and given notice thereof to the creditor, otherwise the obligation to pay money became absolute. This ruling is referred to and reaffirmed in 1 Stew. 524, 2 Stew. 444, 6 Ala. 324, 7 Ala. 775. In this case, there is no averment on the part of the defendant of readiness to perform the contract.

As to that part of the contract which gave option to the creditor, the decisions above referred to establish that where the agreement is to deliver a ponderous article upon a day certain, no demand is necessary to entitle the plaintiff to maintain his action, though it may be defeated by plea and proof of the defendant’s readiness to deliver.

In Townsend v. Wells, 3 Day, 327, which was an action on a note for $80, payable in rum, sugar or molasses, at the election of the payee, within eight days after date, it was held not necessary to prove that the payee made his election, aDd gave notice thereof to the maker, but that if the defendant did not tender either of the articles within eight days, he became immediately liable on his note, and the amount might be recovered in money. — Bee, also, 2 Penn. 63, 301; 3 Scam. 389. It seems to me, that where the creditor has the election of a ponderous article or money, his omission at the proper time to elect, should be regarded as an election to take the money. But the defendant does not plead a tender, or readiness to deliver, and, therefore, the complainant’s right to the money is absolute.

The recovery in gold or silver coin was correct. — Holt v. Given, 43 Ala. 613 ; Chisholm v. Arrington, ib. 610 ; Butler v. Horwilz, 8 Wall.

There was no error in reforming the deed. The proof abundantly shows that there was no fraud or misrepresentation respecting the “ lost lands,” even if it does not appear from the deed that the warranty of title was not intended to apply to them.

The judgment is affirmed.