Sec 576

It may be that there are transactions between a bailor and bailee which, from the nature of things, must remain open until a demand is made by the bailor on the bailee. In such case the demand is a prerequisite to the inception of liquidated indebtedness. Thus, when goods are left with a bailee for safe custody, he is not chargeable with the duty of returning them until a demand is made on him; though it is otherwise when they have been converted by him wrongfully, in which case the bailment is determined, and he is at once chargeable as a wrong-doer.1 Between a factor and his principal, also, the factor's duty is to account on demand; and until the demand is made, or there be instructions to remit, he is not liable to a suit for non-accounting.2 And whenever demand is requisite, it must be given in reasonable time.3 A demand, however, may be made at any place where the party holding the goods may be found.4 - A pledgee of stock or other assets, where the debt in question is payable on demand, cannot sell without demand, even where it is agreed that he may sell without notice to the debtor.5 And unless a clause is contained in the contract dispensing with notice, the pledgee must, before sale, give reasonable notice to the pledgor.6 - That a demand, when requisite, under a contract of sale, should be made within a reasonable time, will be hereafter seen.7 - A note payable in " legal services on demand" will not sustain an action until a demand, specifying the nature of the services required, has been made.8 - When a demand is necessary, it is not excused by showing that the defendant would not probably have complied with it if made;1 though it is otherwise where liability is generally denied.2 - A demand is necessary in all cases where the creditor has an option which must be determined before suit is brought.3

Demand necessary when implied in contract of bailment or other contract.

1 Wilkinson v. Verity, L. R. 6 C. P. 206. See Wren ». Kirton, 11 Ves. 377; Foster p. Bank, 17 Mass. 479. Penn. Coal Co. v. Blake, 85 N. Y. 227.

2 Wh. on Agency, sec 787; Topham v. Braddick, 1 Taunt. 572; Burns v. Pills-bury, 17 N. H. 66; Cooley v. Betts, 24 Wend. 203. In Massachusetts, it has been said that in a claim against a foreign factor demand is not necessary. Dodge v. Perkins, 9 Pick. 368. See, contra, Cooley v. Betts, 24 Wend. 203.

3 Higgins v. Emmons, 5 Conn. 76.

See 2 Kent's Com. 568; Mason v. Briggs, 16 Mass. 453.

4 Dunlap v. Hunting, 2 Denio, 643; infra, sec 871 et seq.

5 Campbell v. Parker, 9 Bosw. 322; Wilson v. Little, 1 Sandf. 351; S. C, 2 Comst. 443.

6 Tucker v. Wilson, 1 P. Wms. 261; Hart v. Ten Eyck, 2 Johns. Ch. 100; Stearns v. Marsh, 4 Denio, 227.

7 Infra, sec 882 a.

8 Haskell v. Mathews, 37 Me. 541.

Sec 577

Where a bond binds the obligor to a specific duty in case he does not pay a designated amount on demand, that demand is necessary to constitute liability on the bond; though it is otherwise when the bond is merely conditioned for the payment of a specific sum without demand being required.4 And when a warrant of attorney is given for the payment of money on demand, demaud is necessary to enable the warrant of attorney to become operative.5 And interest on a money bond, not specifying any day for payment, runs from the date of the bond.6

Bonds conditioned for payment on demand require demand.

1 Southwick v. Bank, 84 N. Y. 421.

2 Hammett v. Brown, 60 Ala. 498; supra, sec 575; infra, sec 885 a.

3 Thus, in a Wisconsin case, in 1882 (Wheeler Man. Co. v. Teetzlaff, 53 Wis. 211), the plaintiffs were shown to have delivered to the defendant a sewing machine under a contract for the sale thereof, by which title was not to pass to the defendant until full payment was made in specific instalments, and on default of any payment the plaintiff was to be at liberty to take the machine away at his option. It was held that the plaintiff, on default in a payment, could not replevy the machine from the defendant's possession without demand or notice of his option, and refusal to surrender it, especially when it had been suffered to remain in defendant's possession for several months after the default, plaintiff claiming meanwhile that the payment was due. It was also held that in the absence of any proof that the defendant was keeping out of the way to avoid notice and demand, a demand upon his wife, and her refusal to surrender the machine, and claim that it belonged to the defendant, were not a demand upon and refusal and claim by the defendant, unless she was especially authorized to act for him in that behalf, and the mere fact that she had made all the previous payments was not sufficient to establish such agency. In support of these views were cited Smith v. Newland, 9 Hun, 553; Johnston v. Whittemore, 27 Mich. 463; Giddey v. Altman, id. 209; Deyoe v. Jamison, 33 id. 94; Cushman v. Jewell, 7 Hun, 525-530; Hutchings v. Munger, 41 N. Y. 155-158.

4 Leake, 2d ed. 642; Carter v. Ring, 3 Camp. 459; Gibbs v. Southam, 5 B. & Ad. 911.

5 Nicholl v. Bromley, 2 B. & B. 464; Capper v. Dando, 2 A. & £. 458.

6 Infra, sec 881.

4. Delivery or other action by promisee.