[Return to Alabama Supreme Court Cases]Genealogical Gleanings FromReports of Cases Determined in theSupreme Court of Alabama, 1820-1826In Franklin County Court, Thomas and James Kirkman declared in debt against Tidence Lane on a note under seal, payable to Ayres Hudspeth, and assigned to them. The note on oyer was set out as follows: “On or before the 20th day of November, next, for value received, I promise to pay Ayres Hudspeth one hundred and twenty-six dollars and thirty cents, which may be discharged with cotton at the market price. Witness by hand and seal, June 1st, 1822. TIDENCE LANE. {Seal.}” 1st Plea. Defendant had at his home, the place where plaintiff avers that the cotton was to be delivered, $126.30 worth of cotton, at the market price, on said November 20, 1822, viz: 3,000 lbs. of baled cotton, ready to deliver to said Hudspeth; but neither he, nor any other person for him lawfully authorized, came to receive the said cotton; the plea further avers that defendant at all times since, has been, and still is, ready to pay said sum in cotton at the market price, and at his dwelling-house. 2nd Plea. Notice was not given by Hudspeth, or plaintiff’s demanding said sum in cotton either at, before, or since, the time “when the said debt became due.” 3rd Plea. Plea avers that Hudspeth, before defendant had notice or knowledge of the assignment, was indebted to him in $150, which he offers to set off. 4th Plea. Payment. Demurrer and joinder to 1st and 2d Pleas. Replication and issues to 3d and 4th. Verdict for plaintiffs; but on the 1st and 2d pleas the County Court sustained the demurrer, and rendered judgments for defendant. The plaintiffs prosecuted a writ of error to the Circuit Court, at the first term of which, after filing the record, on motion of the plaintiffs, a certiorari was awarded returnable immediately; and at the same term the Circuit Court reversed the judgment of the County Court, and rendered judgment for the plaintiffs in the action for the amount of the debt and interest. In the Circuit Court the defendant excepted to the order of the court ruling him to trial at the same term at which the certiorari had been awarded. Lane prosecuted a writ of error to this court, and assigned that the Circuit Court erred— 1. In sustaining the demurrer to the 1st and 2d pleas. 2. In rendering final judgment instead of remanding the cause to the County Court. 3 and 4. In awarding the certiorari returnable instanter, and afterwards taking up the cause at the same term. Wm. B. Martin, for plaintiff. Coalter,, for defendants in error. JUDGE SAFFOLD—The question presented by the demurrer to the 1st and 2d pleas is, were the plaintiffs in the action, or the obligee, bound to demand payment in cotton, or give notice that payment in that article was required, before the right of action for the money could accrue? The contract was for the payment of a sum of money at a time stipulated, reserving to the defendant the right of making payment in cotton if he should prefer it. The plaintiffs could not claim payment in cotton, nor was the defendant bound to pay in that article. By the terms of the instrument the election was given to him, and on payment or tender of money, he would have been absolved from all or tender of money, he would have been absolved from all farther liability. The principle contended for in argument, that in contracts for payment of specific articles, where no place of delivery is mentioned, the residence of the debtor, by legal construction, is understood to be the place, is believed to be correct. But the doctrine does not apply to contracts like the present. Here it was for him to determine whether he would pay in cotton or in money, and his determination and preparation to pay in cotton, if such was the fact, rested in the knowledge alone. He was bound to make his election with the time allowed by the contract, and give notice thereof to the creditor; otherwise the obligation to pay money became absolute. The state of the record did not require the Circuit Court to remand the cause. All the pleas, except such as had been demurred to, had been disposed of, and the issues found for the plaintiffs. If the decision on the demurrer was correct, the Circuit Court was authorized by statute to render final judgment. As to the 3d and 4th assignments—When it is practicable to supply diminutions of the record instanter, there can be no objection to doing so; and after the record is complete, there can be no error in refusing to delay the decision of the cause. Let the judgment of the Circuit Court be affirmed. Source: Henry Minor, Reporter, Reports of Cases Determined in the Supreme Court of Alabama From May, 1820, to July, 1826 (Atlanta: 1891), pp. 410-412. |
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