
    Wornack v. Jenkins.
    Where a note is made payable in specific articles, the creditor, on the coming due of the note, may designate a place of delivery, and notify the debtor thereof, and he will then bo bound to make delivery at that place ; but if the creditor neglects to designate a place of delivery, then the debtor must, at once, after the note has become due, select a proper place, within the reason and spirit of the contract, notify the creditor thereof, if his locality is known, and make delivery at that place, and thus discharge the debt. . '*
    
    APPEAL from the Decatur Circuit Court.
   Perkins, J.

Suit upon a nóte of the following tenor:

“January 1, 1859.
“ One month after date, I promise to pay to the order of Wilttam Manes, four hundred and twenty dollars, in good assorted lumber, at one dollar and twenty cents per hundred, to be delivered at St. Paul, at such places as said Manes may designate, for value received.
(Signed,) “A. H. Wornack.”

The note was indorsed to the plaintiff. The appellant raises no question, in his brief, upon the sufficiency of the complaint, and we shall raise none. The note, it will be observed, is for the payment of a debt in specific articles, wMch articles were to be delivered to Manes’ order, at such places as he should designate, within certain limits. Neither Manes, nor his assignee, designated any place, or places, for the delivery of the lumber, and yet Wornaek is sued for its non-delivery; and the question is, can the action be maintained? This question may be answered in considering the more general one, as to what was the duty of the maker oi* the note in question, on its becoming due. His ultimate duty was to pay the note by the delivery of the articles specified, at a legal place, or by paying the amount of it in money to the holder. The failure of the payee, or holder, to give notice of a place for the deposit of the specific article, did not excuse the maker from paying the note, because such notice was not a condition precedent to its payment. Tins is settled by the cases of Gilbert v. Danforth, 2 Seld. 585; and Livingston v. Miller, 1 Kernan, 80. The right of designating the place is a privilege, which is waived by the neglect to exercise it, and such waiver leaves the note payable in specific articles, at a place to be designated by the debtor, which must be a reasonable one, and, in a case like that at bar-, within the specified limits; except in case of rent, which, when the payee fails to exercise an option given by the lease, as to designating a place of payment in specific articles, becomes payable on the premises.

But, in case of a contract payable in specific articles, where the debtor has the right of selecting the place for delivery, and desires to make a delivery which shall vest the property in the creditor, and put it at his risk, and thus discharge the debt, reason would seem to dictate that the creditor should have notice of the place of delivery, so that he might take measures for the security and jireservation of the property; and such seems to be the law. Peck v. Hubbard, 11 Vermont, 612; 2 Par. on Contracts, pp. 161, 169, note x.

In such á contract as that in the case at bar, the creditor, before, or on the coming due of the note, may designate the place of delivery, and notify the debtor thereof. The debtor must then make delivery at that place. But, if the creditor neglect to designate to the debtor a place for delivery, then the debtor may, at once, after the note has become due, select a proper place, within the reason and spirit of the contract, notify the creditor thereof, if his locality is known, and make delivery at that point, and thus discharge the debt. If the locality of the creditor was not known, that fact might furnish an excuse for a failure to give notice.

J. S. Scobey, for the appellant.

Oscar B. Ilord and James Gavin, for the appellee.

Per Guriam. — The judgment is affirmed, with 1 per cent, damages and costs.  