Higgins v. Emmons , 5 Conn. 76 ( 1823 )

Hosmer, Ch. J.

The only question before the court, relates to the sufficiency of the plaintiff’s demand. The cases which determine the place of delivery, have no relevancy to the place of demand; for the demand need not, of necessity, be made at the place, where the goods and chattels must be received. If the defendants had declared, that the articles were destroyed, or if they had refused to deliver them, no one would doubt that the demand was sufficient.

The defendants having engaged to deliver the property in question on demand, it is the legal construction of the contract, that a reasonable demand must be made; and any facts, which show the demand to have been reasonable, must prove, necessarily, that it was made at the proper place. The only difficulty in the case has arisen, from confounding the place of delivery, with that of demand; but these are not, of course, coincident. Had the defendants said, “we will not deliver the goods,” their contract would have been broken, because a reasonable request for their delivery had been made. I consider the defendants as having been subjected to the obligation of speaking, by the demand of the officer, and that their silence was equivalent to a refusal of the delivery of the goods. Their intention may rationally be inferred from the circumstances appearing in the case; and it is inconsistent not merely with civility, but with the obligation reasonably existing on them, to construe their expressive silence, as having no meaning. The silence maintained, in Swift v. Chamberlain, 3 Conn. Rep. 537. where no question was asked, no obligation of disclosure existed, and the fact itself, for aught that appears, was entirely accidental, was of a different character, and laid no foundation of inference against the person omitting to speak. If the defendants had said to Higgins, “ the property is ready to be delivered; come with us and receive it;" be must have gone with them to the house of Emmons, or to any other place in East-Haddam, where the property was. But, a silence continued in defiance of an obligation to speak, and for no just and reasonable purpose, ought not to benefit the defendants. The demand was fairly made, and should have been frankly answered.

The case of Mason v. Briggs, 16 Mass. Rep. 453. did not determine, that a demand made at a place, at some distance from the property to be delivered, was invalid; but it affirmatively decided, that a demand at the party’s dwelling-house, in his absence, was sufficient. This principle has no relevancy to the case before the court.

The determination of the court in Scott v. Crane, 1 Conn. Rep. 255. is very apposite to the case under discussion. A demand was made at New-Haven, of goods, which had been attached at Oxford, and which probably were believed to be at the latter place. At the time of the demand, the defendant declared, that he had given up the goods in question, to Zerah Hawley and Lewis Hotchkiss, and taken their receipt for them. The court was of opinion, that a legal demand had been made, and that a refusal to deliver the articles demanded, inferred from the preceding facts, rendered it unnecessary to repair to the place of the defendant’s abode. “ Whenever an officer has attached estate, (said Swift, J.) and holds it to respond the judgment, it is necessary that a demand should be made of him on the execution. No place is prescribed by law, at which such demand must be made. It may be at the place of his abode, of wherever he may be. If a demand should be made of him, at a place where the property is not, and he offers to deliver it to the officer, at the place where it is, it will be the duty of the officer to repair to such place, to receive it; but if he refuse to deliver it, at any place, this refusal will subject him to an action, whether the property were at the place where demanded or not." I consider the above principle, in a case so very analogous to the present, as entirely applicable to it; and am of opinion, that the charge to the jury was incorrect.

The other Judges were of the same opinion.

New trial to be granted