
    Noe vs. Hodges.
    1. On a contract for the delivery of hogs, in which no time or place of delivery is specified, a demand at the residence of the payor is sufficient without ten days previous notice thereof, under the provisions oftheactof 1807, ch. 95, sec. 1.
    2. An offer to pay in bank notes is a good tender, if not objected for that cause, and an objection urged on other and different grounds is an implied waiver of the objection to the character of the currency offered in payment.
    3. Where a contract was made in writing (but not under seal) to pay in dollars: Held, that the admission of parole evidence to prove thatil was agreed between the parties, that bank notes should be receivable in discharge thereof, was in violation of the great principle, that parole evidence shall not be heard to add to or vary a written contract, and therefore erroneous.
    4. To bind a party it is not necessary that his name should be signed to the instrument in the usual style. It is sufficient if it appear in the body of the instrument, such instrument having been reduced to writing by him.
    On the 16th July, 1886, Joseph Noe bound himself by written contract, to deliver to Eli Hodges one hundred hogs, each to weigh two hundred pounds of pork gross weight, for the sum of 13 75 per hundred. The money was to be paid when the hogs should be delivered. No time or place was specified in the writing at which the hogs should be delivered. The parties resided in the county of Grainger. It was agreed at the time that the hogs should be delivered between the 10th and 15th days of the ensuing November at the house of defendant Noe. They were to be paid for in the common bank note currency of the State of Tennessee. These particulars were, however, not inserted in the contract. Before the month of November, pork hogs rose to five dollars per hundred weight gross. At the agreed time, in the month of November, Hodges applied at the house of Noe for the hogs. Noe refused to deliver the hogs, unless Hodges would pay him five dollars per hundred. Hodges refused to give him this amount, but tendered him the amount necessary to discharge the obligation for 100 hogs at $3 75, in Virginia, Tennessee or Kentucky bank notes. Noe refused to receive the money or to deliver the hogs.- He made no objection to the description of the currency at the time of the demand.
    On the 20th December, 1836, Hodges instituted an action of trespass on the case against Noe, in the circuit court of Grainger county.
    The plaintiff declared, that on the 16th July, 1836, in consideration, that the plaintiff at the request of defendant had agreed to purchase of defendant one hundred head of hogs, each to weigh 200 lbs. gross weight, for the price of $3 75 per hundred weight, to be paid on delivery, the defendant in consideration thereof, bargained and sold and agreed to deliver to the plaintiff said one hundred head of hogs, of the weight aforesaid, and at the price aforesaid, to be paid on delivery and that said delivery was agreed to be made at the residence of defendant Noe between the 15th and 20th days of November, 1836, and that plaintiff' was ready at the time and place mentioned, to receive said hogs. That plaintiff on the 11th July, 1836, entered into an agreement with the defendant as follows, (here plaintiff set forth the agreement) and that plaintiff was always ready and offered to do all things on his part required by said agreement, and that on the — day of November, 1836, he attended at the residence of Noe, and demanded the said hogs, and offered then and there to pay saidNoe, for said hogs, at the rates, &c. &c.
    The defendant pleaded non-assumpsit, and the cause was submitted to a jury at the April term, 1842, after repeated continuances, upon the facts and pleadings above set forth, Robert M. Anderson, judge, presiding.
    Hodges introduced proof to' show, that the contract was, that the debt contracted on his part for the hogs was to be discharged in the common bank note currency of the State of Tennessee. This was objected to. The objection overruled and the testimony submitted to the jury. The judge charged the jury:
    1. That evidence was admissible to show that bank notes were agreed to be taken in discharge of the debt contracted, and not gold and silver.
    2. That if bank notes were tendered and were not objected by defendant on that ground, but upon the ground that he must have a larger sum than the amount tendered, it was a good tender.
    3, That if the demand was made at the defendant’s residence ten days before suit was brought, it would be sufficient.
    The jury rendered a verdict for the sum of $330. A motion for a new trial was made and overruled, and judgment rendered. The defendant appealed in error.
    
      J. A. McKinney, for plaintiff in error.
    
      R. J. McKinney, for defendant in error.
   Tukxey, J.

delivered the opinion of the court.

This is an action on the case brought by defendant in error, against the plaintiff, to recover damages for a breach of contract. It appears from the proof that on the 16th day of July, 1836, Joseph Noe entered into a written contract with Eli Hodges, in the words and figures following, to wit:

“July 16th, 1836 — Joseph Noe, jr., sells Eli Hodges one hundred hogs, to weigh two hundred pounds pork, gross, which said Eli Hodges doth agree to give to said Noe three hundred and seventy-five cents per hundred, pay when the hogs are delivered.”

The proof shows that some time in the month of November following the hogs were demanded by Hodges from Noe at his residence, and pay at $3 75 per hundred gross was tendered him, in either Tennessee, Virginia, South Carolina or Kentucky bank notes, as might suit him, but he refused to deliver the hogs and take the money, unless more was paid than $3 75 per hundred, but did not object to the character of the money tendered. Between the time of making the contract and the demand, the price of hogs had risen from $3 75 per hundred, gross, to $5. Hodges introduced proof to show, that by the terms of the contract he was to pay Noe in the common currency of Tennessee. This was objected to, but the objection was overruled by the court and testimony received.

The jury found a verdict for the plaintiff for the sum of $330, for which judgment was given; and thereupon a writ of error is prosecuted to this court. Three points are argued:

1st. Is the demand of the hogs at the house of defendant in November, sufficient demand to charge him upon a refusal or neglect to deliver? We think it is. It is argued, that in as much as neither time nor place is specified in the contract for delivery, a demand at the residence of the defendant is not good without ten days previous notice thereof, under the provisions of the act of 1807, ch. 95, sec. 1. Such is not the construction of that statute. It provides, that no action shall be brought upon any contract for the payment or delivery of property, when the time and place or either is not ascertained in the contract, until ten days notice of time or place, or both, (as the case may be,) required for the payment or delivery of such property, and if no such notice be given, the property shall be payable at the place of residence of the payor, where demand must be made before action brought. That is, if time and place are specified, the contract must be performed at the time and place; if time be specified and not place, payee must give ten days notice of the place, if he wishes it to be a different one from that of the residence of the payor; if place is specified but not time, he must give ten days notice of the time; if neither time nor place be specified, he must give ten days notice of both; and if he does not do this, the contract is payable at the place of residence of the payor, where a demand must be made before suit is brought. The demand at Noe’s house was all that was necessary on this point of the case.

2d. Was the tender made by the plaintiff at the time of the demand, good in law? We have seen that it was Tennessee bank notes, Virginia bank notes, South Carolina bank notes, or Kentucky bank notes, at the election of the defendant; that the character of the money was not objected to, but the amount. Indeed the deposition says he was willing to receive the money, but demanded more than $3 75 per hundred, which by his contract he had agreed to take. This certainly is binding upon him, and prevents his insisting upon trial, that gold or silver should have been tendered in payment.

It has always been held, that a tender of bank notes is gockl, if not objected to; not because they may be as good as gold oi. silver, but because the not objecting for that cause, is an implied admission of a willingness to receive in such currency, and this the more so if (as in this case) the objection be rested upon another and different ground.

3d. Was the parole testimony, showing that the contract was to be discharged in the common currency of Tennessee legitimate? We think not. The terms ofthe contract were reduced to writing. By theseterms, plaintiff was to pay $3 75 per hundred for the hogs. This is legal currency, and not bank notes, and to permit parole testimony to prove that banknotes were contracted for, and not gold and silver, would in our estimation be a gross violation of the great legal principle, that parole proof shall not be heard to add to or vary a written contract, with certain exceptions, of which this is not one. We cannot do so. It would be of very dangerous tendency, perhaps striking a fatal blow at the credit of all written money contracts not expressed to be for gold and silver. F or if you may prove that bank notes were contracted for, you may prove what kind; and in our country their value is as variant and as fluctuating as can be conceived of.

But it is said, this written contract is not signed by the defendant, and therefore is not within the rule of law referred to. It is proven to be in his own hand writing and his name is in the body of the instrument. This has been held to be a sufficient signature of will, and will certainly make a good contract in writing and obligatory upon the party making it.

Judgment of the circuit court reversed, and case remanded for a new trial.  