Mingus v. . Pritchet , 14 N.C. 78 ( 1831 )

"On or against the 1st of March, 1829, I promise to pay John Mingus forty-two dollars seventy-five cents, to be discharged in good trade for value received. Witness my hand and seal," etc.

Upon the trial before his Honor, Martin, J., at MACON, on the last circuit, the defendant relied upon the plea of tender, and proved that the 1st of March, 1829, was Sunday; that on the Friday preceding he gave the plaintiff notice to attend on the next day at the plantation of the defendant; that the plaintiff refused to attend on Saturday, and proposed Monday for making the payment, which was refused by the defendant. He then offered to prove that he had written the plaintiff that payment should be made on Monday. But the judge refused to admit evidence of the contents of the letter, unless notice to produce the letter itself was proved. The defendant then proved that on Monday, the 2nd of March, he called upon two of his neighbors to value corn and bacon to the amount of his obligation, and that on the same day he notified the plaintiff of that valuation, who refused to receive the articles at the price at which they were valued.

The jury, under the instructions of his Honor, returned a verdict for the plaintiff, and the defendant appealed. The tender proved in the case is too late, according to the covenant, being the day after it fell due. If an agreement of the parties to that effect would have enlarged the time, yet there is no such agreement here. The plaintiff proposed to take payment on Monday, but the defendant objected. He says he afterwards assented and (79) wrote to the plaintiff. But there is no proof of that, as the evidence offered upon that point was properly rejected for the reason given by the judge.

If, however, the defendant was prevented by the act of the plaintiff from making the tender at the proper time, or discharged from it, then he shall be excused and considered as having duly made it, provided he shows that he was able and ready to make it. Although the covenant does not specify the kind of trade, it may be taken in favor of the defendant that the articles were to be cumbrous. In that case he would not be bound to carry them and tender them to the plaintiff personally wherever he might be able to find him, but he is bound to give notice of his readiness and request the creditor to name a place where he will receive them, and when a reasonable place is designated, the debtor is further bound to have the articles there, and if the creditor does not attend to receive them he, the debtor, must show that he was there ready to deliver at the day. (Co. Litt., 210.)

Here the plaintiff may be considered as appointing the defendant's plantation as the place because he did not object to it when proposed. But nothing occurred to discharge the defendant from a tender at that place on the day specified in the contract. It is true the plaintiff did not attend on Saturday nor Sunday, or fix upon any other time; but that does not dispense with a tender then and there by the debtor, or rather with proof of his ability and willingness to tender. Here there is no evidence that the defendant was himself at home on either of those days, or had any of the articles, which were afterwards valued and set apart for the plaintiff, or indeed any other sufficient thing to satisfy his bond.

PER CURIAM. Judgment affirmed.

Cited: Terrell v. Walker, 65 N.C. 94; Weill v. Bank, 106 N.C. 8.

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