
    MARTIN v. BUSH.
    (S. C., Thomp. Cas., 158-160.)
    Knoxville,
    September Term, 1858.
    1. NOTE PAYABLE IN LABOR. Maker must oiler labor without notice.
    Where there is a promise by note to pay a certain sum of money in a certain kind of work, the maker cannot insist, as a condition precedent to its performance, that the payee notify him where the work is to be done; but the maker must seek the payee on the day fixed in the contract for the performance thereof, and offer to commence the work, with a desire to be shown where it is to be done, and continue ready to perform the work whenever the place shall be pointed out, if he wishes to save his contract — that is, the right to discharge the note in such work.
    Cited and approved: Massy v. Shields, Meigs, 78; 3 Green!. Ev., sec. 610.
    2. SAME. Breached, payable in money.
    So long as the maker of such note saves his contract by such offer and continued readiness to do the work, he has the right to pay the note in such work, but when his contract is broken, his right to do so is gone, and the payee’s right to demand the money value of the services as fixed in the contract becomes absolute.
    Cited and approved: Marrigan v. Page, 4 Hum., 247; Langtryv. Walker, 6 Hum., 336.
    3. SAME. Assignable; action by assignee.
    Such a note or contract is assignable, and the assignee may maintain an action in his own name upon it. [See Code, sec. 3516, and notes.]
    4. SAME. Not a property contract. Notice immaterial.
    Such a note or contract is not a contract for the payment or delivery of property within the Act of 1807, ch. 95 [Code, secs. 3192, 3193], but for the performance of labor and service, and must be governed by common law principles. The breach of such contract fixes the right of the parties, and notice given afterwards by the payee under a mistake of law does not affect his rights. [Where the place of service is fixed, but no day fixed, see note 18 under sec. 3193 of the Code. For property contracts, see -Code, secs. 3192, 3193, and notes.]
    Cited and distinguished: Marrigan v. Fage, 4 Hum., 247.
    Cited as not applicable: Rodgers v. Love, 2 Hum., 417.
   Wright, J.,

delivered the opinion of the court:

This action is founded upon the following instrument:

“Nasi-iville, November, 1856.
“One day after date, I promise to pay R. B. Cartteman, or bearer, five hundred and ten dollars in masonry work, at customary prices. Yalue received. Witness my hand, this day above. Citas. E. Martin.”

The question is, Has there been any breach of contract? If so, when and to what extent was the plaintiff entitled to recover? At common law, it was not incumbent upon the plaintiff to designate the place where the masonry work should be done as a condition precedent to its performance by the defendant. On the contrary, it was the duty of the defendant, if he wished to save his contract, to have come on the next day after its execution, and have offered to commence the work, with a desire to- be shown where it was to be performed. Had he done so1, and Cartteman, or the plaintiff, who is his assignee, had then failed to show the place, he would have been excused, provided he continued ready to perform the work, whenever the place should be pointed out. It is not pretended he did this, and the covenant in his contract became at once broken. As authority in-his support of this construction, we refer to the case of Massy v. Shields, Meigs’ Rep., 78, where a contract having very much resemblance to' this, and not distinguishable from it in principle, received a like construction by the supreme court of this state. To the same effect are the authorities, English and American. 2 Greenl. Ev., sec. 610, and note to Massy v. Shields, and cases cited. And though the defendant, so long as he saves his contract, had the right to pay this note in masonry, yet after the day of payment was past and his contract broken, his right to do> so was gone, and the payee’s right to demand the money value of the services, as fixed in the contract, became absolute. Marrigan vs. Page, 4 Hum., 247; Langtry v. Walker & Polk, 6 Hum., 336.

This is not a contract for the payment or delivery of property within the act of 1807, ch. 95, but'for the performance of labor and service, and the case must, therefore, be determined upon common law authority. The case of Massy v. Shields must be held to have been so decided. But if this were [not] so, the language of the act is plain, and does not embrace such a contract as this.

The case of Marrigan v.. Page, it is true, was upon a contract for labor, and may seem to be against our conclusion, but it is really not so, and this question was not debated or decided, and it is manifest from a remark of Judge Eeese, .who delivered the opinion of the court, that it was considered that the act of 1807 did not apply to such a contract. This being so, and the right of the parties having become fixed by the breach of the contract, the giving of the notice by.the plaintiff afterwards, requiring the performance of the work, under the mistaken impression that the law made it necessary for him to do so, can have no effect in the case, and the more especially so, as the jury have found, and we think properly, that the defendant even then failed to perform the work.

In this view of the case it is plain that Rodgers v. Love et al., 2 Hum., 417, to which we have been referred, has no application.

Affirm tibe judgment.  