2 Lane County v. Oregon, 7 Wall. 71; Perry v. Washburn, 20 Cal. 318. But see Rhodes v. O'Farrell, 2 Nev. 60, if there has been a judgment for the taxes.
3 1 Saund. 33 b, note (2); Bull. N. P.; Poole v. Tumbridge, 2 M. & W. 223; Cotton v. Godwin, 7 M. & W. 147; Dixon v. Clark, 5 C. B. 365; Rose v. Brown, Kirby, 295.
4 Colby v. Stevens, 38 N. H. 191 (1859). 5 2 Greenl. Evid. § 609.
6 See ante, §1028, and cases cited; Goodwin v. Holbrook, 4 Wend. 380; Savage Manuf. Co. v. Armstrong, 19 Me. 147.
§ 1411. Where the time of delivery is fixed, the tender should be at the time agreed, unless the time fall on a Sunday, in which case a tender on Monday is sufficient.6 If a particular day be designated as the time of delivery, the goods may be tendered at any time during the day, but sufficient time before sunset should be allowed to enable the creditor to examine and receive them.1 A tender or delivery during the evening is not good unless the party be present to receive the articles, since the act requires the concurrence of both contracting parties.2 If the time be fixed, and the payee have the right to appoint the place, he should give notice of the place he elects at a reasonable time before the delivery is to take place, so as to enable the debtor to make a tender there.3 If the agreement be to deliver goods within a certain number of days, the time is ordinarily to be computed exclusive of the day on which the contract is made,4 unless there be circumstances indicating a different intention, in which case the construction of the contract must follow the intention of the parties.1 Where no time is fixed for the delivery of goods, they are ordinarily deliverable on demand, but the demand must be such as to give reasonable time to the debtor to make delivery.2
1 Bronson v. Gleason, 7 Barb. 472; Barr v. Myers, 3 Watts & Serg. 295. 2 Veazy v. Harmony, 7 Greenl. (Bennett's ed.) 91. See ante, § 1017; Barney v. Bliss, 2 Aik. 60.
3 2 Kent, Comm. lect. 39, pp. 507, 508, and cases cited; 2 Greenl. Ev. § 609; Chipman on Contracts, p. 24, 25, 26; Goodwin v. Holbrook, 4 Wend. 377; Barr v. Myers, 3 W. & S. 295; Roberts v. Beatty, 2 Penn. 63; Aldrich v. Albee, 1 Greenl. (Bennett's ed.) 120; Bronson v. Gleason, 7 Barb. 472.
4 2 Kent, Comm. lect. 39, p. 506 to 509; ante, § 1028, and cases cited; 2 Greenl. on Ev. § 610; Howard v. Miner, 20 Me. 325; Lamb v. Lathrop. 13 Wend. 95; Peck v. Hubbard, 11 Vt. 612; Russell v. Ormsbee, 10 Vt. 271.
5 Lobdell v. Hopkins, 5 Cow. 518; Vance v. Bloomer, 20 Wend. 190; Rice v. Churchill, 2 Denio, 148; Scott v. Crane, 1 Conn. 255; Mason v. Briggs, 16 Mass. 453; Slingerland v. Morse, 8 Johns. 474.
6 Barrett v. Allen, 10 Ohio, 426; Avery v. Stewart, 2 Conn. 69; Salter v. Burt, 20 Wend. 205.
1 Startup v. Macdonald, 7 Scott, N. R. 269, 285, 287. See ante, §1030; Aldrich v. Albee, 1 Greenl. (Bennett's ed.) 120; Savary v. Goe, 3 Wash. C. C. 140.
2 Startup v. Macdonald, 7 Scott, N. R. 269, 284, 285; Sweet v. Harding, 19 Vt. 587.
3 Howard v. Miner, 20 Me. 325.
4 Bigelow v. Willson, 1 Pick. 485. In this case, Mr. Justice Wilde says: "Before the case of Pugh v. The Duke of Leeds, all the cases agree . that the words, 'from the day of the date,' are words of exclusion. So plain was this meaning thought to be, that leases depending on this rule of construction were uniformly declared void, against the manifest intention of the parties. Of this doctrine, thus applied, Lord Mansfield very justly complains, not, however, on the ground that the general meaning of the words had been misunderstood, but because the plain intention of the parties to the contract had been disregarded. All that was decided in that case was, that 'from the day of the date' might include the day, if such was the clear intention of the contracting parties, and not that such was the usual signification of the words. I think, therefore, we are warranted by the authorities to say that when time is to be computed from or after the day of a given date, the day is to be excluded in the computation; and that this rule of construction is never to be rejected, unless it appears that a different computation was intended. So, also, if we consider the question independent of the authorities, it seems to me impossible to raise a doubt. No moment of time can be said to be after a given day, until that day has expired."Pellew v, Wonford, 9 B. & C. 134; Webb v. Fair-maner, 3 M. & W. 473; Hardy v. Ryle, 9 B. & C. 603; Wilkinson v. Gaston, 9 Q. B. 141; Gorst v. Lowndes, 11 Sim. 434; Wiggin v. Peters, 1 Met. 127; Farwell v. Rogers, 4 Cush. 460; Bissell v. Bissell, 11 Barb. 96; Weeks v. Hull, 19 Conn. 376; Cornell v. Moulton, 3 Denio, 12; Thoma3 v. Afflick, 16 Penn. St. 14; Styles v. Wardle, 4 B. & C. 908.
§ 1412. Where time and place are fixed, a tender of the goods at such time and place is sufficient, although there be no person there to receive them;3 and, in such case, the debtor, after the tender, must be understood to hold them as bailee of the creditor.4 If the delivery be at the store of the debtor, it is not sufficient that he avers himself to have been ready to deliver, if it appear that the goods were not set apart and identified.5 Where a debt is to be paid in specific articles, at a fixed time and place, no demand is necessary at such time and place by the plaintiff to enable him to sustain an action.6
§ 1413. A tender of goods, as of money, must be absolute and unconditional, and must be made so that the person to whom they are tendered may have an opportunity to examine them.7 When the person to whom goods are to be delivered is out of the State, it would seem to be the duty of the debtor, in all cases where no place of delivery has been fixed or is implied from the circumstances of the case, to inquire of him where the goods shall be delivered, and to comply with his directions if they be reasonable and proper, but he would not be bound to follow him out of the State for the purpose of delivery.1 If the creditor refuse or neglect to appoint a reasonable place, the debtor may make a tender at any reasonable and proper place.2
1 Pugh v. Leeds, 2 Cowp. 714; Lester v. Garland, 15 Ves. 248; Bigelow v. Willson, 1 Pick. 485.
2 Russell v. Ormsbee, 10 Vt. 274; Bailey v. Simonds, 6 N. H. 159.
3 Gilmore v. Holt, 4 Pick. 258; South worth v. Smith, 7 Cush. 391.
4 2 Kent, Comm. lect. 39, p. 509. See ante, § 1017; Smith v. Loomis, 7 Conn. 110; Lamb v. Lathrop, 13 Wend. 95; Slingerland v. Morse, 8 Johns. 474.
5 Barney v. Bliss, 1 D. Chip. 399; Veazy v. Harmony, 7 Greenl. (Bennett's ed.) 91; Newton v. Galbraith, 5 Johns. 119; Leballister v. Nash, 24 Me. 316; Bates v. Churchill, 32 Me. 31; Wyman v. Winslow, 2 Fairf. 398. See, also, ante, § 1017; Bobbins v. Luce, 4 Mass. 474; Barns v. Graham, 4 Cow. 452.
6 Fleming v. Potter, 7 Watts, 380; Thomas v. Roosa, 7 Johns. 461; Townsend v. Wells, 3 Day, 327; White v. Perley, 15 Me. 470; Games v. Manning, 2 Greene, 251.
7 Isherwpod v. Whitmore, 10 M. & W. 757; s. c. 11 M. & W. 347. See Miles v. Roberts, 34 N. H. 245.
1 Co. Litt. 210; Smith v. Smith, 25 Wend. 405; s. c. 2 Hill, 351; Howard v. Miner, 20 Me. 325. But see White v. Perley, 15 Me. 470; Bixby v. Whitney, 5 Greenl. 192. In relation to this last case, Prof. Greeuleaf in his Treatise on Evidence, § 611, note, says: "Whether, if the creditor is out of the State, no place of delivery having been agreed upon, this circumstance gives to the debtor the right of appointing the place, quiere; and see Bixby v. Whitney, 5 Greenl. 192, in which, however, the reporter's marginal note seems to state the doctrine a little broader than the decision requires, it not being necessary for the plaintiff in that case to aver any readiness to receive the goods at any place as the contract was for the payment of a sum of money, in specific articles, on or before a day certain."
2 Where a payment was to be made by the delivery of wagons, and the wagons were ready for delivery at the time and place stipulated, and were not actually delivered because the party was not then ready to receive them, and were kept by his request, until he was ready, it was held that a further tender of the wagons was unnecessary. Wheelock v. Tanner, 39 N. Y. 481 (1868).