Majority
p. 26M’Nish, administratrix, &c. vs. Coon. ALBANY, Oct. 1834.
Headnote
Where one party enters into a contract to pay to another a certain sum of money in services of a particular character and within a given time, and the party contracting disables himself from rendering the services within the specified time, a demand of performance need not be shown to entitle the other party to sustain anaction for theamount specified in thecontract.Error, from the Washington common pleas. M’Nish, tire intestate, sued Coon on an instrument in writing, dated 2d December, 1823, whereby Coon promised to pay M’Nish $63,-70 in sawing to be done at the mill near the house of Daniel Coon; tobeperfonned duringtheterm specified in a lease made by D. R to A. M’Nish, date 6th November, 1816, and which lease expires on the 6th November, 1825. The plaintiff declared specially on the contract, and the declaration also con
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tained a count in indebitatus assumpsit. The making of the contract and the consideration therefor were proved, and also that the spring of 1824 the dam of the mill specified in the contract was carried away by a freshet, and had never since been repaired, and that in the beginning of October, 1825, the mill was sold by the owners thereof, the defendant being one of such owners, and taken away. It was shewn that the dam might have been repaired in a few days. A verdict was entered for the plaintiff for the amount of the note, subject to the opinion of the court on a case to be made; and from a bill of exceptions attached to the record, it appears that on the argument of such case, it was objected that the plaintiff was not entitled to recover, not having proved a demand of payment in the mode specified in the note, and that the common pleas sustained such objection. Wherupon judgement was entered for the defendant. The plaintiff sued out a writ of error.
J. Edwards & S. Stevens,
for the plaintiff in error, cited 6 Wendell, 369, 12 Mass. R. 86 , 2 Caines, 121.
C. L. Allen,
for the plaintiff, conceded that where, in the case of a contract like the present, it is out of the power of the party promising to perform, it is unnecessary to make a demand of performance according to the stipulations of the contract; but he contended that here the disability was merely temporary, which might have been removed, probably would have been, had a demand been made. He cited Chitty in Cont. 274, Chipman on Cont. 23,41,1 Dane's Abr. 229, 6 Petersdorff, 141.
By the Court,
The sale and removal of the mill in the fore part of October is a decisive fact against the defendant. The plaintiff had a right to wait as long as he pleased before he demanded the sawing, so that time enough was left to the defendant to perform it before the expiration of the lease, which was the sixth day of November. There is nothing in the case to show that a month was not more than sufficient for that purpose; and in the fore part of October,
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before the plaintiff was obliged to make the demand, the dexo v fendant had disabled himself from performing, by the sale and removal of the mill. Upon this ground the plaintiff was clearly excused from making a demand; it would have been an act entirely nugatory; the defendant had not the physical power of performing; there was no mill at the place where the sawing- was to be done. The case of Lovett v. Cornwell & Wing, 6 Wendell, 369, is in point. The court below should have held that the plaintiff had excused the demand, and was entitled to recover.
Judgment reversed; venire de novo.