Bean v. Simpson , 16 Me. 49 ( 1839 )

The opinion of the Court, after advisement, was drawn up by

Weston C. J.

That the contract, originally given to Bean, was assigned to Sherman, in April, 1836, has been proved, and is not disputed. The defendant,' having had notice the following month, could not subsequently make payment to Bean, so as to defeat Sherman. This was expressly decided in Davenport v. Woodbridge, 8 Greenl. 17.

No place was appointed for the delivery of the specific articles, which are the subject matter of the contract. It was then the duty of the defendant, the debtor, to ascertain where the creditor would receive them. His readiness to pay at his own dwelling-house, on the day appointed, afforded him no defence. Bixby v. Whitney, 5 Greenl. 192.

The plaintiff proved all that was necessary to maintain the action. The averment of a demand, not required by the contract, or necessary by law, was impertinent, and as such may be rejected as surplusage. Bristow v. Wright, Douglas, 665.

Exceptions overruled.