Smith v. Smith , 25 Wend. 404 ( 1841 )

By the Court.

Nelson, C. J.

Several objections are now taken to the evidence under the declaration; but as none of them were mentioned at the trial, we must regard them as waived, even if tenable. It is therefore unimportant to notice them.

The only question involved is as to the sufficiency of the tender proved ; as no place of payment is mentioned in the contract, it is insisted that the tender should have been made to the defendant personally, and not at her residence.

The general rule, as laid down by Littleton, § 304, 2 Co. Litt. 55, Th. ed., is if no place of payment of money be specified, the party is bound to seek the person to whom it is due, if within the realm; and the learned commentator, after approving of the doctrine, adds, that if out of the realm, this dispenses with the tender, and no rights are lost by the inability to make it. The true meaning of the text and commentary, I apprehend, applies to the case where the party to whom the money is to be paid has no residence in the kingdom. If he has a residence, it would seem to [ *407 ] be *agreeable to the understanding of the parties to the contract, that the tender should be made there, as it is but reasonable to presume some competent person has been left to transact the business. Bacon says, it was formerly holden that money due upon a mortgage (which is considered money in gross and collateral to the land,) must, if no place is mentioned, be tendered to the person, if he be in England, at the place where he is ; but that it has been since holden, 1 Chan. Cas. 29, that the tender may be made at the dwelling of the mortgagee. 6 Bacon, 450, tit. Tender, c. It has also been held, where the mortgagor gave notice to the mortgagee that he would make payment at a particular place, though no place was fixed in the mortgage, unless objected to at the time, the tender there would be good. 3 P. Wms. 378.

It would be a most inconvenient, and often an impracticable rule, besides liable to great abuse by the party to whom the money is due, to exact in all cases, where no place is mentioned, a tender personally.

The Code Napoleon provides, “ that if no particular place be named, at which payment is to be made, then tender shall be made to the creditor himself, or at his house, or at the place selected for the execution of the agreement.” Chip. on Con. 75.

New trial denied.