Barr against Myers, 3 Watts & Serg. 295

The opinion of the Court was delivered by Sergeant, J. The only question in this case is, as to the place of delivery—whether the plaintiffs were in default in not taking the trees to the defendants, at Newville, their place of residence, on or before the 21st of November 1839, or whether it was sufficient that the plaintiffs had them, on that day, at their residence in Carlisle, ready to be delivered on the demand of the defendants. The rules that regulate the delivery of portable articles, which are contracted to be sold and delivered, vary according to the nature of the contract.

If by the contract neither time nor place of performance is stipulated, but they are deliverable on demand, then the general rule is, that the articles sold are to be delivered at the place where they are at the time of sale—such as the store of the merchant, the shop of the manufacturer or mechanic, and the farm or granary of the farmer, at which they are deposited or kept. And the reason is, that the party to receive is to be the actor, by going to demand the articles; and till then the other party is not in default by omitting to tender them.

But the reverse is the case, where, though the place is not fixed, the time on or before which the vendor binds himself to deliver the articles is stipulated; for there the party to deliver must become the first actor, in order to fulfil his contract. He must seek out the vendee, at his residence, and there tender the articles, to save himself from default. This distinction is settled by various authorities. Goodwin v. Holbrook, (4 Wend. 380) ; Lobdell v. Hopkins, (5 Cowen 516); Roberts v. Beatty, (2 Penn. 71); Chipman on Cont. 29, 30; 2 Kent’s Com. 505.

I speak of portable articles capable of being conveniently carried from place to place, and obviously so intended by their nature; for there may be cases where, possibly, from the nature of the subject of the contract, it might be otherwise—and in the case of cumbersome articles, where the delivery is to be to the vendee, the vendor must seek the vendee a reasonable time before the day of delivery, to ask him to appoint aplace of delivery. Co. Litt. 210, b ; Roberts v. Beatty, (2 Penn. 71); 2 Kent’s Com. 507.

I am not aware of any decided case which makes a distinction, when a time is stipulated for the delivery of articles, between a contract of sale and delivery, and a contract to pay a debt in certain articles; nor do I perceive the ground of such distinction. In the present case, it would rather seem the articles ought to be considered as portable. For, though called trees, and growing in the ground at the time of the contract, yet they were to be taken up, to be replanted in the spring, and were but of small size and weight, usually put up in bundles, easily transported from place to place, and a common

article of sale in that condition, even at auction. Whether this were so or not, the law is, we think, correctly stated in the defendant’s first point, and the court below erred in not so stating the law to the jury. Judgment reversed, and venire facias de novo awarded.