Cummings v. Dudley

Ross, J.: The complaint contains two counts: The first alleges that on or about the eleventh of October, 1878, at the county of Stanislaus, the plaintiff sold and delivered to the defendants a certain horse for the sum of fifteen hundred dollars in gold coin, which sum the defendants promised to pay plaintiff therefor, but have failed to pay any part thereof except the sum of one hundred dollars, which they paid on account.

The second count alleges that on the said eleventh day of October the defendants were indebted to the plaintiff in the sum of fifteen hundred dollars on account of the said horse delivered to defendants at their request, which horse, it is averred, was reasonably worth that sum, and no part of which has been paid, except the sum of one hundred dollars.

The proof on the part of the plaintiff is to the effect that defendants refused to give him fifteen hundred dollars in money for the horse, but agreed to give him seven hundred and fifty dollars in money and seven hundred and fifty dollars in horses to be appraised in a certain way; and that the plaintiff sold and delivered the horse to the defendants on those terms. By the contract of sale no time was fixed for the payment of the seven hundred and fifty dollars in money or the delivery of the horses.

From this statement it is obvious that neither count of the complaint stated the contract; for it is not true, as stated in the first count, that the plaintiff sold and delivered to the defendants the horse for the sum of fifteen hundred dollars [385]in gold coin; nor is it true, as stated in the second count, that at the time of the sale, to wit, October 11, 1878, the defendants were indebted to the plaintiff on account of the sale and delivery of the horse in the sum of fifteen hundred dollars. The learned counsel for the respondent has referred us to a number of cases, and we have found numerous others, in which actions have been maintained for the money or notes giving to the promisor the option to pay in specific chattels and where he has neglected to exercise the option. But in those cases the declaration averred what the contract was. Thus: Plowman v. Riddle, 7 Ala. 775, was an action in which-the plaintiff declared on a promissory note for three hundred.. dollars, which contained a provision that the payors might discharge it in good leather of certain specified kind and at certain rates, and the Court very properly held that the privilege was for the benefit of the payors, and that it was their duty, if they elected to deliver the leather in discharge of their contract, to give notice to the plaintiff of their readiness and willingness to do so. Having failed in that duty, the contract to pay the money became absolute.