p. 285defendant having averred in his answer, that the plaintiff had not directed him where. or at what place he should pay the rents, and that he had requested the plaintiff to direct him where or at what place to pay the same, and the plaintiff having replied, averring that he had served notices on the defendant, directing him where to pay such rents, the service of the notices had been rendered a material fact in the cause for the jury to decide. To this decision the defendant excepted.
The justice then charged the jury, that the case presented by the testimony, was entirely a question of fact for the jury to determine: that if they believed from the testimony, that both the notices introduced in evidence by the plaintiff, were served on the defendant, then the plaintiff' was entitled to recover for the full amount of rent due on both leases. If, however, they came to the conclusion, from the testimony, that only one notice had been served upon the defendant, and that, the one produced by defendant’s counsel; then the plaintiff was entitled to recover only the amount due upon the lease mentioned in that notice, being, with the interest on the same, $36-89. To so .much of the charge as held, that if the jury came to the conclusion from the testimony that only one notice had been served upon the defendant, and that such notice was the one produced by defendant’s counsel, then the plaintiff was only entitled to recover the amount due upon the lease mentioned in that notice, being with the interest on the same $36-89, the plaintiff excepted. The justice also charged the jury, that the plaintiff' could not recover the rent, unless he had notified the defendant where to pay it. The jury rendered a verdict in favor of the plaintiff- for thirty-six dollars and eighty-nine cents. The plaintiff appealed from the judgment rendered thereon and the general term in the second district affirmed the judgment. He thereupon appealed to this court.
H. Hogeboom, for appellant.
I. The service of notice upon the defendant of the place where to pay the rent was
p. 287Judgment being now entered by the direction of the judge, (Code §278,) and the appeal being from his judgment, it is similar to a motion for judgment non obstante veredicto. Judgment non obstante veredicto is always given to the plaintiff where the verdict for the defendant is upon an immaterial issue. (Graham’s Pr. 2d Ed. 647; Bellows v. Shannon, 2 Hill, 86 ; Burrills’ Pr. 2d Ed. 268.) The motion for judgment non obstante veredicto is abolished, and the only remedy is by appeal. (Rules 49, 54 and 76; Old Rules Sup. Ct.)
J. Van Buren for respondent.
The defendant was not in default until the plaintiff had designated the place of performance. 1. Such designation was required by the express terms of the contract, and until made, the lessee was not in default. (2
Kent Com. 506-7;
Lobdell v. Hopkins, 5 Cow. 516 ;
Lush v. Druse, 4 Wend. 313 ;
Durkee v. Marshall, 7 Wend. 312 ;
Vance v. Bloomer, 20 Wend. 196 .) 2. The agreement contemplated a designation either “ at the North River,” or “ within lot No. 3,” for the simultaneous payment of the money, rendering of the two days’ service and delivery of the four hens, upon the rents becoming due; the covenant in respect to its entire performance in the one place or the other, was indivisible.
This was an action, so far as regards the questions presented by this bill of exceptions, upon a lease for twenty-six dollars, two days’ riding, and four hens, rent claimed to be due and payable on the 1st of January, 1849. The clause in the lease upon which the principal question arises is as follows: “Yielding and paying therefor, (the.demised premises,) unto the said party of the first part, (the-plaintiff,) yearly and every year, on the first day of January, during the term, at the North River, within the county of Columbia, or within lot No. 3, as the party of the first part shall from time to time direct.” The de
p. 288fendant alleges in his answer to .the complaint of the landlord, that the latter had not directed where or at what place to pay the rents in said lease mentioned, and although the defendant requested- the plaintiff to fix the place of payment, the plaintiff neglected and refused so to do. The answer then concludes with an averment of readiness and willingness on the part of the defendant to pay whenever the place should be appointed by the lessor. In-his reply, the plaintiff avers that on the first of January, 1848, in the morning, he did, by notice in writing, direct the rents to be paid at the office of Hubbel, Clark & Co., in the city of Hudson; and that he is ignorant of the fact that the defendant was ready or willing to pay as averred in the answer. Upon the issue thus formed the parties proceeded '. to trial, and. the jury found for the defendant. The judge decided that the service of notice where the rent should be paid was rendered material by the pleadings. To this the plaintiff excepted, and this presents the only material question in the case. I think that the learned judge was right in his decision. According to the terms by the lease, the landlord reserved the right to direct whether the rents should be paid on the premises, or at some place upon the North River, within the county of Columbia. Whether he was bound to make an election is not the question, although the one chiefly urged by the counsel for the plaintiff, but whether, having determined the place of payment, the defendant could discharge himself from his obligation by a tender at any other place. Had the jury found according to the express averment by the plaintiff, that he had served a written notice, directing his tenant to pay at Hudson, it would have been no defence to the defendant that he was ready, willing and actually tendered the rent at any other place. He would be bound by the election of his landlord, because he had thus covenanted. The provision, it is true, was for the benefit of the landlord, but if he chose to avail himself of the privilege
p. 289secured by the contract, his election had the same effect upon the rights of the parties as if the place of performance had been inserted in the agreement.
The plaintiff by his replication, had placed himself in the same situation as if he had averred the same matter in the complaint, and thus compelled the defendant to have shown a -performance at Hudson, or fail in his defence altogether. After voluntarily forming an issue of this kind the plaintiff was not at liberty at the trial, without any request, to amend or disregard that issue, and to insist that his rights were the same as if the averment in relation to notice was struck from the pleadings. He claimed that it was not necessary to direct the defendant where to pay the rent. If this should be admitted, it would not aid him- A right of action might exist without the notice, but in that event the tenant would probably have had the right to have paid the rent upon the land without a personal tender. (2 Coke R. 466, Borough's Case.)
The tenant might be prepared to show this, or to prove that the. landlord had received the tender. But, if upon the record it appeared by the allegation of the plaintiff, that a place of payment had been established by the parties or by the election of the landlord, under a provision reserving to him such a privilege, evidence of the kind above alluded to would be immaterial, and of course inadmissible. With such evidence, however, the defendant must be prepared or have a verdict against him, if the plaintiff should be permitted at the trial to abandon the only issue on the record, and insist contrary to his own averment, that he had not made any election as to the place where the rent was to be paid, and the service rendered. If this view is correct it disposes of the case, and the judgment of the supreme court must be affirmed. It is not necessary to determine whether a designation of the place was a condition precedent to a right of action upon the part of the plaintiff. If the contract had been entirely silent, the place of payment of rent would be the premises demised
p. 290It would be otherwise a case of a contract for the delivery of portable articles in payment of a debt. In such case the debtor must seek the creditor.
But by the terms of this lease, the defendant could only be required to pay on lot 3, or on the Hudson within the county. From the nature of the return to be made for the use of the land, a part being in service with horses or team of the defendant, it would seem to be reasonable that before bringing suit he should designate where the service should be rendered. And as the rent is entire the money would be payable, and the fowls deliverable at the same place.
The judgment should be affirmed.
All the other members of the court concurred with Judge Gardiner, in affirmance of the judgment of the supreme court, upon the ground that the designation of the place of payment of the rent was made material by the pleadings.
Judgment affirmed.