Stevens v. Adams , 45 Me. 611 ( 1858 )

The opinion of the Court was drawn up by

Cutting, J.

The note declared on, being made payable in cash or specific articles on demand, is the evidence of a promise in the alternative; and the alternative belongs to the promisor. 2 Parsons on Con. 163. And, before an action thereon could be maintained, it was necessary for the payee to have demanded payment of the maker, who then could have elected in which mode he would discharge his contract. Lobdell v. Hopkins, 5 Cow. 518; Vance v. Bloomer, 20 Wend. 192; Chandler v. Winship, 6 Mass. 310. There being no evidence of a demand, this action would have been prematurely commenced, unless the specifications filed in defence have operated as a waiver of such proof. The 1st, 2d and 3d specifications refer to no such grounds of defence, and the 4th is in substance the general issue and no specification.

Such being the state of the pleadings, both the genuineness of the defendant’s signature and the demand on him were not put in issue, and the plaintiff had no occasion to produce evidence upon those points, and they must be “ regarded as admitted for the purpose of the trial.” Day v. Frye, 41 Maine, 326. The demand being then admitted, and there being no defence set up of payment in either money or the specific articles by the defendant, and sustained by evidence, the action is maintainable. Defendant defaulted.

Tenney, C. J., Rice, Hathaway, Appleton, and G-oodenow, J. J., concurred.