Follett & Bradley v. Eastman , 16 Vt. 19 ( 1844 )

The opinion of the court was delivered by

Redfield, J.

Two questions are raised in the present case.

1. Whether the defence, attempted to be shown, was objectionable on the ground that it tended to vary the terms of the note; and if not,

2. Whether the money was mailed in season to come, on any reasonable construction, within the terms of the plaintiffs’ offer in regard to the mode of receiving payment. In deciding the case we treat it the same as if the note had been made payable directly to the plaintiffs; for the whole transaction, taken together, shows it to have been put in the form it was for the purpose merély of getting another surety, in order to enable the plaintiffs to negotiate it at the bank. This must have been the understanding of all the parties concerned.

In regard to the first question, we have not found any difficulty in allowing the defence. The offer of the plaintiffs, to receive payment through the mail upon a note, which by its terms was payable at the Bank of Burlington, was a separate and distinct matter from the contract described in the note. It was a proposition resting upon no consideration, and revocable at will; but, after it had been performed, it would cease to be without consideration, or revocable, and would operate to discharge the note. But to have this effect it must have been performed according to its reasonable import, which brings us, secondly, to consider the meaning of the plaintiffs’ offer, which must be understood with reference to the subject matter and the situation of the parties. We think it must have been expected that this note would be negotiated at the bank, and of course that the plaintiffs would need the money in time to fake up the note at maturity. The defendant knew the course of the mails, and should have looked to it that he sent the money in season to meet the note at the time it became due at Burlington. If he had done that, it must have been at the risk of plaintiffs. But not having done that it was at his own risk, and, unless he showed its arrival and acceptance, it would not operate to defeat a recovery upon the note.

Judgment affirmed.