Bixby v. Whitney , 5 Me. 192 ( 1827 )

The opinion of the Court was read at the ensuirig October term in Kennebec, as drawn up by

MecubN C. J.

In this case a motion in arrest of judgment has been filed, and an exception alleged against the decision of the judge who presided at the trial. As to the motion: — The first, third and fourth reasons assigned in support of it, state omissions on the part of the plaintiff of certain particulars which it is contended she was bound to perform and aver. But it seems well settled that where no place is appointed for the delivery of specific articles, the obligor must go before the day of payment to the obligee and know what place he will appoint to receive them. The first act is to be done by the debtor. In the present case he made no such application, but suffered the days of payment to elapse, and thereby became liable to pay the contents of the note in money. If he had done his duty as to the ascertainment of the place of delivery, and offered there to deliver the boards, he could have successfully pleaded those facts, whether the plaintiff was ready then to receive them or not. Of course}, an averment of her presence, or readiness, was of no importance. The second reason assigned has no merit in this stage of the cause, whatever it might have had on special demurrer. The verdict proves that the note in the present case has not been paid, either in boards or money. The motion is overruled.

As to the exceptions : — The submission and note both bear the same date; and the language of the parties in describing the subjects submitted is, “ all debts, dues and demands heretofore existing between the parties.” As we do not know which was first signed, the bond or the note, we must so consider them as to render the conduct of the parties rational and consistent. To do this we must suppose the bond to have been signed first; and thus the note would not be embraced in the language; and this seems the most rational construction, because tire terms of the note are peculiar, as to the mode and time of payment, and inconsistent with the submission; and it never was a demand of the testator before the note was given. It was given, as stated by the counsel for the plaintiff, for different demands, of different persons, claiming in different capacities. But if the note was included in the terms of the submission, it never was in fact submitted to their consideration by the plaintiff; and the case finds expressly that the arbitrators refused to take the same into consideration, and did not, in forming their award. This fact not only puts an end to the defence, but shows, most clearly that it has -no foundation in justice. Webster v. Lee 5. Mass. 334. Hodges v. Hodges 9. Mass. 320. Smith v. Whiting 11. Mass. 445, and cases there cited.

We are all of opinion that the exception, as well as the motion must be overruled, and judgment be entered on the verdict.