Martin v. Bush , 1 Shan. Cas. 99 ( 1858 )

Weight, J.,

delivered tibe opiniou of the Court:

This action is founded upon tbe following instrument,

“Nashville, Nov. 1856.

“One day after date, I promise to pay R. B. Cartte-man or bearer, Eive hundred and ten dollars in Masonry work, at customary prices. Value received. Witness my hand this day above. Chas E. MARTIN.”

The question is, has there been any breach of contract. If so, when and to what extent was the plan-tiff entitled to recover ? At common law it was not incumbent upon the plaintiff to designate the place where the Masonry work should be done, as a condition precedent to its performance by the defendant. On the contrary, it was the duty of the defendant, if he wished to save his contract, to have come on the next day after its execution, and have offered to commence the work, with a desire to be shown where it was to be performed. Had he done so, and Cartteman, or the plaintiff, who is his assignnee, had then failed to show the place, he would have been excused, provided he continued ready to perform the work, whenever the place should be • pointed out. It is not pretended he did this, and the covenant in his contract became at once broken. As authority in his support of this construction, we refer to the case ■ of Massey vs. Shields, Meigs Rep. 78, where a contract having very much resemblance to this, and not distinguishable from it in principle, received a like construction by the Supreme Court of this State. To the same effect are the authorities, English and American. 2 Greenl. Ev. sec. 610, and note to Massey vs. Shields, and cases cited. And though the defendant, so long as he saves his contract, had the right to pay this note in masonry, yet after the day of payment was past and his contract, broken, his right to do so was gone, and the payees right to demand the money value of the services, as fixed in the contract, became absolute. Maningor vs. Page, 4 Hum. 247; Longtry vs. Walker & Polk, 6 Hum. 336.

This is not a contract for the payment or delivery of property within the. act of 1807, ch. 95, but for the performance of labor and service, and the case must therefore be determined upon common law authority. The case of Massey vs. Shields, must be held to have been so decided. But if this were so, the language of the act is plain, and does not embrace such a contract as this.

The case of Maningor vs. Page, it is true, was upon a contract for labor, and may seem to be against our conclusion, but it is really not so, and this question was not debated or decided; and it is manifest from a remark of Judge Reese, who delivered the opinion of the Court, that it was considered that the act of 1807, did not apply to such a contract. This being so, and the right of the parties having become fixed by the breach of the contract, the giving of the notice, by the plaintiff afterwards, requiring the performance of the work, under the mistaken impression that the law made it necessary for him to do so, can have no' effect in the case, and the more especially so, as the jury have found, and we think properly — that the defendant even then failed to perform the work.

In this view of the case, it is plain that Rogers vs. Love, et al. 2 Hum. 417, to which we have been referred, has no application.

Affirm the, judgment.

Co. Litt. 210 b. (Vol. 2 Thomas’ Ed. p. 41.)

2 Kent Com. 507, et seq. Bixby v. Whitney, 5 Greenl. R. 192 ; Bean v. Simpson, 16 Maine R. 49; Howard v. Miner, 20 Maine R. 325 ; Mingus v. Pritchett 3 Dev. 78. S. P; Currier v. Currier 2 N. H. Rep. 75 ; Chip. Con. 25,26,27 ; Stone v. Gilliam, Show. 149; Lobdell v. Hopkins, 5 Cowen, 516. But see Minor v. Michie, Walk. Missis. 24. See also Roberts v. Beatty, 2 Penn. R. 65; Aldrich v. Albec, 1 Greenl. R. 120; Lamb v. Lathrop, 13 Wend. 95 ; Barr v. Myers, 3 Watts & Serg. 295; Slingerland v. Morse, 8 Johns. R. 474 ; Mason v. Briggs, 16 Mass R. 453; Scott v. Crane 1 Conn. R. 255 ; Brown v. Berry, 14 N. H. R. 459; Robinon v. Batchelder, 4 N. H. R. 46; Smith v. Loomis, 7 Conn. R. 110; Johnson v. Baird, 3 Blackf. 182; Donman v. Elder, Ibid. 490; Weld v. Hadley N. H. R. 295.