#### George M. Borah, Pltff in Error, *v.*Thomas Curry and Jas L. Owen, Defts in Error.

ERROR TO WAYNE.

A note given for money, which may be paid in any article of personal property, is not within the statute governing notes payable in *personal property other than, money;*and when the maker of such note, elects.to discharge it by the payment of the personal property, the property must be tendered at the place óf residence of the payee at the time the note was given..... •.

This was an action originally commenced before a justice of " ri£he peace, and taken by appeal to the Circuit Court of Wayne county. The cause was there tried before Harlan, Judge, and a' jury, at March term, 1849, when a verdict was found and a judgment thereon entered for the defendants." The note sued on is set out in the opinion of the Court." The bill of exceptions taken in the' case, shows that the defendants resided together when the note'was given, that when the note became "due they had over 400 bushels of corn- ready to measure, "but no one came' to receive.it; that the'eorn was not measured out, but was in crib's' with other corn; that 'about a week before said note became dtie, Curry hauled one load of corn to the place where Crews, the payee of the .note, lived, which he refused to receive, and the corn was hatiled back by Curry. Plaintiff below told defendants, he would not ■ receive said corn unless they would haul all the corn to the place where payee lived when note was given, which defendants- -refused to do. Plaintiff proved that he demanded the corn on the day the note became due,' that defendants offered to pay one half of corn at Crews’ and one half at Owen’s, which plaintiff refused; and demanded that it should all be paid at Crews’: " ' ' ’ " - . •

The jury found a verdict for defendants; plaintiff moved for a new trial which was denied, and the plaintiff below brings the cause here for review, by writ of error.

E. Beecher, for Pltff in error.

The note was made payable at the residence of the payee. R. S., p. 386, §12; 2 Kent’s Com., 507-8.

There was no tender of the corn. To have constituted a ten— *69der, the corn should have been measured out and set apart from other corn, so that plaintiff could see what was his property. 2 Grecnleaf’s Ev., §600, 609; Cbitty on Contract, 727, note 1; 2 Kent’s Com., 496, 507-8; 4 Scam., 331; 7 Conn., 110.

There was no waiver of the tender. There can he no waiver of tender of personal property other than money.

C, Constable, for Belts in error.

1. The place of tender was the debtor’s residence or farm, inasmuch as the note was payable in farm produce. 2 Kent’s Com., 508; Lobdell *v.*Hopkins, 5 Cowen, 516; Vance *v.*Bloomer 20 Wend., 199; 2 Greenleaf’s Ev., §609.

2. A question of tender is a question of fact to be found by the jury, and unless clearly against evidence, their finding will not be disturbed; and if the jury had sufficient evidence before them, to satisfy them, that the defendants in error offered to deliver the corn as the plaintiff should direct, at their farm, the verdict was right and should not have been set aside. Slingerland *v.*Morse *et al.,*8 John., 474,

3. The case has been twice tried by juries, once by a justice, and reviewed and adjudged in effect by the Circuit Court, and the result has always been against plaintiff in error, and this Court will not disturb the judgment, inasmuch as the burden of proof was on said plaintiff, Cunningham *v.*Magoun, 18 Pick., 13; Wheeler *v.*Shields, 2 Scam., 348; Eldredge v. Huntingdon, 2 Scam., 535: Goode *v.*Love, 4 Leigh, 635.

Trumbull, J.

This action was originally commenced before a justice of the peace upon the following note: “ On or before the twenty-fifth of December next, we or either of ns promise to pay Nathan Crews forty dollars, which may be discharged in good sound corn at twenty cents per bushel, for value received of him, this 18th of April, 1848.” The note was subscribed by the defendants, and had been duly assigned by Crews, the payee, to the plaintiff.

In the Circuit Court, the defendants had judgment, the correctness of which depends entirely upon the question, whether "the makers of the note could discharge it by a tender of the corn at their place of residence, or whether they were bound to take it to the residence of the payee.

*70Both parties resided in the county at the time the note was given, as well as whemit fell due, -'It is insisted tin the' part of the defendants that corn is - a ponderous article, and that under the statute, they had-fhe right to discharge the'note by a tender " of the corn at the place where they resided,' at thedime thenOte was given. . : - i,r ■ '■ -

See. 12 cli. 73, R. S. declares, that instruments of writing “for1 the payment or delivery of personal property, other than money,” when no place is specified for the payment or delivery of such property, may be discharged by a tender of the property, at the-place of residence of the payee;' at the time the instrument of writing was exéctited: Provided,'howévér, that' if the personal property be too ponderous to b'é’reiaovéd, or the payee had not a known place of residence iñ thé'cóuniy at "the time the contract Was executed;-then 'the property may be'te'hdered, at the place where 'the maker réside'd whétt the contract' was entered-into. : '• 1 " ...... ' .

The-note in question is not, however, within the statute. It is not a nóte for -the payment *of personal property other''than money,*but a note for the payment of-money, with a privilege to thé’makers to discharge it in corn at a certain price; ' : '.....

The right to have -the note paid' in-móney ór com, was not left; to the payee, but-'the makers reserved thatpnv'ile'ge' to themselves;. !■ ' '•' - "■ '• •" " " ''

Haduorn at the time the note fell due, been worth fifty cents to the bushel,-the payee -could': not have compelled it's delivery', while he- would have-'been compelled to 'take it; if tendered,1 though its value should'fall-'to'ten''cents.' ’

The note was payable at a particular time, and in such case no demand is necessary to 'entitle a party to sue. Thé makers, to have discharged them'selves by the' payment of the money, would have had to seek1 the payee, or assignee ih this' instance, ' at his place of residence; -andthereisúo -reason, Why tliey' should' ” be allowed to "discharge'-themselves by "' a'1 tender of the corn, which was a'privilege inserted'in thé not'e-wholly for their ben-, efit, by atender at a .different' place, from the 'óñé where they. would have been compelled to tender the money", had'the'note remainedintheRands of thé:payée; - -'v ■ • " *'

This note- isnot -like the'-oaSe; of-a contract payable in.tradé generally, - without time or place, where it wás held that 'á spe-' *71dial demand was necessary, and the property deliverable at the residence of the debtor. Woods *v Dial—post*72.

The general rule. is, that the person to he discharged from liability upon a .contract by the performance of a certain act, is impliedly bound to do the act which is to exonerate him. Chitty on Contracts, 727,

It was held in the case of Goodwin *v*Holbrook, 4 Wend. 377, that the place of payment, of a note payable in salt, was the residence of the creditor, when *the-time*of payment was fixed by the contract, but the place was not designated. That case is analagous to the present. To have discharged the note, the defendants should have tendered the corn at the time the note fell due, at the place where the payee resided when it was given, and as the record shews that no such tender was made, the verdict of the jury was wrong.

Judgment reversed -and cause remanded.

*■Judgment reversed.,*