Hart and Card vs. Orange Green, 8 Vt. 191

The opinion of the court was delivered by Phelps, J.- The only question raised in this case, is, whether it was necessary to aver a presentment of the note in question, at the Bank of Manchester where it was made payable, and a demand of payment there. This could be necessary, only upon the the assumption that a presentment there was necessary, as a condition precedent to the plaintiff’s right of recovery. Upon this question as to the necessity of such presentment, which has been much litigated there has been, great diversity of opinion, the King’s Bench in England holding one way, and the Common Pleas another.

The controversy was carried into the House of Lords where a final decision was had, establishing the necessity of a presentment, and this was followed by

an act of Parliament, dispensing with it. In the state of New York it has been held, by the supreme court that a demand at the place of payment was not necessary. And this in our judgment is the better opinion. Without involving ourselves in the abstrus e reasoning on this subject, it is sufficient to say, that we regard the note as designating a place of payment, and, so far as this designation is of any practical importance, we are disposed to give effect to it. The promise is to pay money at the Bank of Manchester. An omission to pay at that place, is a breach of the contract.

But while on the one hand, a presentment of the note there is not necessary, to enable the defendant to perform, so, on the other, it is not necessary in order to ascertain whether the money has been deposited there. The defendant may have made the note payable there for bis own convenience. If so, he may deposit the money there, and his promise is performed. There is no doubt that he could avail himself of such deposit, as either a payment or tender. If he do not leave the money, he, by his own act, renders a presentment there unnecessary and nugatory.

On the other hand, the plaintiff if he sue without such presentment, sues at his peril. If the money have been deposited there the contract is satisfied; and, if not, the debt is unpaid, and he is entitled to recover. The only practical importance, therefore, which we can attach to this designation is, that it enables the defendant to pay at that place, if he chooses, if not, his contract is broken, and he is liable, to a suit. It would do violence to the contract to hold, that a presentment, on the precise day when the note became payable, was necessary.

This would render the promise conditional instead of absoluto and in strictness the debt would be lost if the.condition precedent is not performed. Such could not have been the intent of the parties. The debt is payable absolutely. The place of nayment is a matter of convenience. We think every rational purpose is answered by this view of the subject, and, as between the original parties, we think no presentment is necessary. The rule would doubtless be different asbetween endorser and endorsee, for their presentment and demand are in the nature of a condition precedent. " Judgment affirmed.