Administrators of Conn v. Executors of Gano ( 1824 )

By the Court :

The plain interpretation of a promise to pay a sum of money at a certain place upon a certain day, is, that the person making the promise will on the day be at the place with the money ; if he be not there, or does not have the money there, he has not performed his promise. The right of the plaintiff to receive the money does not depend upon his making a demand. It is absolute by the very terms of the promise. If the defendant is ready at the time and place to pay the money, and there is no person there to receive it, his promise is not broken ; the duty to pay the money remains, but no action can be sustained to recover it until a subsequent personal demand be made. This is the plain justice of the case, and is in accordance with the American decisions, which we prefer to follow. It was, therefore, not necessary for the plaintiffs to aver a demand at the'place to maintain their action on these notes.

They have, however, made this averment, and though unnecessary, it is well settled, that being made it must be proved. In an action against the drawer or indorser of a bill, it is not necessary to state that the drawee accepted it; but Chitty says, if it be stated, it must, in an action against the drawer, be proved — p. 459. And in page 514, it is again said, that whenever a particular presentment has been averred, it must be proved; for this reason a new trial must be granted.