Garrard v. Zachariah , 1 Stew. 272 ( 1828 )

JUDGE TAYLOR

delivered the opinion of the Court.

It has been contended by the counsel for the plaintiff in error, that the agreement constituted the maker the agent of the pavee; and that as soon as the plank was purch ased. it became the property of the payee, and the note was ipso facto discharged. This is obviously an untenable position. It is not necessary to sustain it, in order to support this plea, if The plea shows a new execu-tory contract, which when execüted, was to discharge the note. The defendant, to perform his part of the contract, was to buy the .plank (and of course to pay money or incur a debt to the amount of its cost) and deliver it to the plaintiff. It'cannot be, nbris it denied, that the performance of this new agreement would discharge the defendant from liability on the note. But it is contended, that although he bought the plank, and tendered it to the plaintiff, yet as he refused to receive it, the defendant must abandon it, or keep it ready to be delivered to the-plaintiff when he may demand it, and that the plea should have averred that one or the other of these things had been done. The rules which apply to a tender of money ought not to govern a tender of specific articles. Money can be kept without expense, and with little comparative risk ; not so as to bulky or heavy articles. If one contracts to pay another twenty horses at a specified day, buys them and has them ready to deliver at the day, and the other party refuses to receive them, would it be reasonable, that he who had contracted to deliver the horses, should keep them for an indefinite length of time, ready to deliver to the other party on demand, or should abandon them, in order to be discharged from liability on his contract ? I think not. Whether a party, who after making such a tender, which is refused, converts the property to his own use, would be liable in an action of trover, or not, it is not necessary now to determine.

It is the unanimous opinion of the Court, that the tender of the specific articles, in conformity with the contract, was a discharge of the contract; and that no other averments than those made, were necessary in the plea. For the support of this opinion, see Chipman on Contracts.

Judgement reversed and cause remanded.