Russell v. Ormsbee , 10 Vt. 274 ( 1838 )

The opinion of the Court was delivered by

Phelps, J.

This case turns upon the question, whether a sufficient demand was made by the plaintiff to entitle him to the money for the amount found due to him, by the auditors, in lieu of the leather. It appears from the report, that, by the contract, the coal was to be paid for in leather, such as the plaintiff should select, at the place designated ; but no definite time, within which the payment was to be ’made, was stipulated. This demand, with a designation of the kind selected by the plaintiff, was an indispensable pre-requisite to the right of action. Had the contract fixed a time for the payment, the case might have been different. In such a case, an omission on the part of the plaintiff to designate the kind of article to be paid, may well be considered a waiver of his right in this particular, and, as throwing the selection upon the defendant, who must necessarily perform his contract within the time limited. Such was the case of Townsend v. Wells, 3 Day’s R. 327. But where no time is limited, a demand becomes necessary, and it must be such a demand as will enable the plaintiff to perform, according to the terms of his contract.

It appears from the report, that, although the plaintiff called on the defendant for pay, yet, he uniformly declined to make any selection, or receive the leather. Such a demand amounts to nothing, in a legal point of view, as it does not show the defendant in default, who appears to have been ready at all times, to perform his contract. The reason assigned by the plaintiff for refusing the article, was, that the defendant was not willing to pay the amount demanded. Had the plaintiff demanded no more than his due, this excuse would have been available; but the auditors have found that he insisted upon more, and refused the proffered payment, because more was not offered. This fact is fatal to his cause, as it imports a refusal to receive what he was entitled to.

It is true, that the case does not show a legal tender on the part of the defendant; but we are of opinion, that no tender was necessary. The plaintiff’s demand, being accompanied with a claim for more than was due, and a refusal to receive what he was actually entitled to, did not render a tender on the part of the defendant, necessary for his defence. The fact, therefore, that his first offer fell short of his actual indebtedness is unimportant; and, although his second offer may also have fallen short, (which we have no means of determining) it would be equally unimportant for the reason already suggested.

Judgment for the defendant on the report,