Jones v. Peet , 31 Tenn. 293 ( 1851 )

Green, J.,

delivered the opinion of the court.

This suit is founded on a note for fifteen dollars, which was to be discharged by the use of an office.

It appeared in evidence, that after the execution of the note, Jones agreed to take four loads of wood, two feet high and nine feet long, delivered at his office, in satisfaction of the balance of the debt.

On the trial the judge charged the jury, that if the parties agreed that the balance of the debt owing, after giving credit for the sum awarded by the arbitrators as the value of the rent of the Office, should be paid by the defendant in wood, delivered at plaintiff’s office, and if this contract v/as complied with by the defendant, it would be a satisfaction of the note sued on, even if a part of the wood was delivered after the plaintiff had sued the defendant on the note.

We think the concluding sentence of his Honor’s charge to the jury, is erroneous.

It is true, if the contract were complied with, such compliance would be a satisfaction of the note; but when his Honor adds, that this would be the case, although the wood was delivered after the suit was brought, we' think he erred. In the agreement of accord, there was no time specified for the wood to be delivered; of course, a reasonable time was meant. Now, as the agreement of accord, did not extinguish- the plaintiff’s right of action on the note — if there was no satisfaction according to the intent and meaning of that agreement, in a reasonable time, the plaintiff had a right to sue on the note, and no subsequent delivery of the wood, could defeat his action, thus properly commenced.

The suit is not on the agreement to deliver the wood, but on the note. The agreement to receive the wood, was made for the ease of the defendant, and was a mode of payment} of which he might have availed himself; but if he did not, the right of action on the note was unaffected by the agreement.

The court should have said, that the defendant was entitled to a reasonable time to deliver the wood, and if he, in such time, did deliver it, that was a satisfaction — but that if he failed to deliver the wood in a reasonable time, the plaintiff was entitled to .recover on the note.

Reverse the judgment, and remand the cause for another trial.