
    Suffrein and Coley v. Prindle.
    Distinction where it is the duty of the defendant to give notice, or the plaintiff to make demand.
    This action was brought upon the following written promise (viz.) _ “This balance of £44 4s. is agreed to be paid in good West India rum, delivered in New Haven, as soon as I have any come to band; or if none should come, to procure it at the current market price, and deliver it to John Suffrein or William Coley, or order. Mr. Helmns or Capt. Sloan to judge of the quality and price of the rum.”
    It was averred in the declaration, that the defendant, on the 1st day of January 1783, had good West India rum come to hand, sufficient to pay said sum, but had not paid it.
    The defendant pleaded, that he did not receive any rum until the 10th day of February 1783, and then only forty-nine gallons, which he delivered to the plaintiffs, together with some other articles, to. the amount of £32 7s. which they received in part payment of said sum of £44 4s. That the residue of said rum did not come to hand before the 15th day of August, 1783, at which time, and at all times since, he hath stood ready to deliver said rum to the plaintiffs, or their order, in New Haven; and that he could not find the plaintiffs, or' any person by them authorized to receive said rum, to whom he could make legal tender; and that the plaintiffs had never demanded the same: And concluded by traversing, that on the 1st day of January, 1783, the defendant had good West India rum come to hand sufficient to pay said debt.
    To this there was a demurrer, and judgment for the plaintiffs: For,
   By the whole Court.

The plea amounts only to a traverse of the defendant’s having rum come to hand in January 1783, sufficient to pay the debt, which is an immaterial fact; if his own did not seasonably arrive, he was, by the terms of the contract, to procure other rum: So that the plea is ill, and judgment must be for the plaintiffs, if the declaration is ' good: To which only it is objected, that the plaintiffs alleged no demand; but this was not necessary; they had right of action without any demand, after waiting a reasonable time for the defendant’s rum to arrive, or other rum to be procured, and npt being notified that it was ready; it was the defendant’s duty to give notice, and there was no lien on the plaintiffs to make demand.  