
    Townsend, Crane & Co. vs. William B. Henry.
    A direction to remit money to us as soon as received: — Eelcl, under the circumstances, to be a direction to remit in bank bills and by mail.
    IN THE CITY COURT OF CHARLESTON, OCTOBER TERM, 1854.
    " This was an action of assumpsit on a promissory note, and an open account. The following is 'a copy of the note:
    $297 70-100. Charleston, S. C., March 26, 1852.
    Six months after date, we promise to pay to the order of Townsend, Crane & Co., at their offiee, two hundred, and ninety-seven and seventy cents, value received.
    William B. Henry,
    Budd C. Wall.
    Residence, Cook’s Law office, Ellert Co., Ga.
    Endorsed,
    Rec’d March , 1853, one hundred dollars.
    The following are copies of the letters referred to in the report of the Recorder.
    Ellert County, Ga., Dec. 13th, 1853.
    
      Messrs. Townsend Crane Co.
    
    Gentlemen :—
    I received your letter of last month, with account of last year and this year enclosed. In account of March, 1853, you have me charged with six pieces of prints, 197 yards, at 102 cents per yard, which amounts to $20 69-100 ; and I only received 2 pieces, 65 1-2 yards, which, at- 102 cents, will amount to $6 56-100, which leaves a balance of $14 13-100 in my favor. I informed you of the mistake, immediately after the reception of the goods; and Mr. Corny told me, when he was in Ellert last summer, that he would have it corrected. If you will correct the account, and send me the amount, I will remit you the money. You will please write to Mr. Wall for the balance of last year’s note. He is not interested in the store, but was to give me the first stock of goods. I will try and have the money ready for the goods bought of you this fall, by the time the note is due, and I shall endeavor to pay cash for the goods I buy hereafter. I am, gentlemen, with much respect,
    Yours, &c.,
    W. B. Henry.
    Charleston, S. C., Dec. 16th, 1853.
    
      Mr. W. B. Henry, Oooles Law Office, Cfa.:
    
    Yours 13th inst. is received, and remarks noted. We regret that so large an error should have occurred in your bill, but will make the deduction as requested. Below we give a statement, showing the amount due on your account to this date ; also the balance due on your note signed by Mr. Wall, which please collect and remit to us as soon as received. By so doing you will confer an obligation. This arrangement will suit us much better than to send the note up, or to write to Mr. Wall for the money, as we look to you for its payment.
    Yours truly,
    Townsend, Crane & Co.
    The letter from the plaintiffs was accompanied by a statement showing the amount due on the account and note, with interest calculated to 30th December, 1853, to be $297 37.
    The report of his Honor, the Recorder, is as follows:
    “ This was an action by plaintiffs to recover the amount of an . alleged indebtedness on a note and account. There was no dispute on that part of the case. The defence set up was payment. This payment was alleged to have been made by the defendant, (living somewhere in the interior of Georgia,) having remitted the money by mail. The testimony of two or more witnesses, taken by commission, showed beyond dispute that the money, after being carefully counted by third persons, was enclosed in a letter directed to the plaintiffs in Charleston, and put in the mail at Cook’s Law Office, in Georgia. It was •alleged on the part of the plaintiffs, that the letter never came to hand, and it would appear the money had been lost, or had miscarried. The whole point of the controversy turned upon the authority of the defendant to remit money by mail. This again depended upon the terms of a certain letter from plaintiffs to defendant. It was a letter in reply to a previous one of the defendants to them, apprising them that he had the money in hand for them; (a part of the amount appears to have been the proceeds of a certain note of another party, of which the defendant was either a joint-maker, or rather surety.) After the plaintiffs had been informed as above stated, they wrote the letter referred to. The only important part of the letter consisted in the use of the terms in the way of direction to the defendant to remit. There was considerable evidence on the trial, upon what might be called the general habit, custom, usage, and understanding of our merchants in Hayne street, as to the validity of a remittance by brail from a debtor living in the country. The opinion most strongly expressed on this subject, was perhaps by Mr. Banks. He said that ‘ where the debtor lived in a neighborhood offering no Banle facilities, or means of procuring a bill of exchange or draft on Charleston, he should consider a general or unqualified direction to remit, as a direction to remit by mail.’ It appeared clearly that Cook’s Law Office was a place such as he mentioned, and therefore for the most part, if not entirely out of the reach of bank facilities, or the chance of obtaining bills of exchange or drafts. I had no doubt in my own mind, that a general direction of the creditor in Charleston, to his debtor living in the interior, under the circumstances stated in this case, to remit, without giving any other or special direc-. tions as to the mode, must of necessity, as it were, be construed as a direction to remit, in the only available way, to wit., by mail. The grounds of appeal do not call in question the correctness of the above opinion, which I expressed to the jury in my instructions, but they turn upon what I conceived matters of no importance to the issue between the parties.' I am supposed to have given various instructions to the jury, in regard to notes payable at a particular place, and as stating that there was no difference between notes payable generally, and notes payable at a particular place. I was not called upon to lay down mere abstract principles, in regard to the distinction between notes payable generally, and those payable at a particular place. If the plaintiffs’ counsel had qualified his statement by saying what I did say, and which he may have forgotten, ‘ That in regard to this point of remittance by mail, and payment of a debt past due, it was manifest there could be no distinction between a note payable generally, and one payable at a particular place, as Charleston,’ it would be more correct. I take it as clear, upon the law of contracts» that when the contract, whether to pay generally or at Charleston, (as alleged in this case,) had been broken, in regard to the enforcing payment, or receiving payment from the debtor, they were alike. The validity of -the payment here depended upon the direction of the plaintiffs to the defendant to pay in a particular mode, and I suppose that it will hardly be contended, that it is not competent to the creditor, after the non-payment of a note at a particular place, to direct or agree to a payment at another place, or in another mode. It is evident, in this view of the case, that some of the grounds taken by the plaintiffs’ very zealous counsel, require amendment and qualification, to be consistent with my real statement of the law. As for 'example, the third ground only requires to have added to it these words, ‘ if the creditor so agrees or directs.’ The jury found a verdict for the defendant.”'
    The plaintiffs appealed and now moved this Court for a new ' trial, on the grounds:
    1. Because it is respectfully submitted, that his Honor erred in charging the jury that a note and account payable at a particular time and place after the time appointed for their payment, was payable at the residence of the debtor, and that it “ made no difference if the debt was payable in Charleston or Georgia, after it was past due.”
    2. Because his Honor charged the jury that a contract by a debtor to pay a certain sum at a particular place, was discharged as to the payment at the place specified, by his failure to pay at the specified time.
    3. Because his Honor erred in charging the jury, that the sending of the money by mail by a debtor, without its receipt by the creditor, was the payment of a debt payable at a place different from the debtor’s residence.
    4. Because his Honor erred in charging the jury, that the letter of the 23d of December of the plaintiffs, was an order to remit by mail, and that said letter waived the payment' in Charleston.
    5. Because the verdicts were in other respects contrary to law and evidence.
    
    Moury, for appellants.
    
      McOready, contra.
   The opinion of the Court was delivered by

Wardlaw, J.

This case depends upon the propriety of the remittance which the defendant made. If the plaintiffs authorized that remittance to be made at the time and in the mode which were taken, they assumed the risk, and in effect agreed that the delivery of current bank bills, by a letter duly mailed and addressed to them, should be a payment to them; and this, notwithstanding that the note, then long past due, was payable at their Office in Charleston.

Improper delay has been imputed to the defendant. Iiis letter to plaintiffs was dated December 18th, and was answered December 16th. From this it is apparent that communication between the parties by mail required only a short time, and it is argued that the remittance should have been made about December 20th, that the delay until January 11th was unjustifiable. But it is to be observed that it was only the amount of his account, (which when corrected, was seventy-eight dollars and sixty cents,) which in the letter of December 13th, defendant said he was ready to remit; that payment of the note by Mr. Wall, was in contemplation of the parties, although the plaintiffs held the defendant to his liability thereon; that in the letter of December 16th, the plaintiffs sent a statement, wherein the interest of the note is calculated until December 30th, the defendant is called the hearer, and is instructed to collect; and that the whole amount set down in the statement (two hundred and ninety-seven dollars and thirty-seven cents,) was remitted, showing that the collection was not made before December 30th. Under these circumstances, the delay does not seem to be such as was inconsistent with the instructions.

' The term remit does not of itself mean remit hy mail. But when it is remembered that Cook’s Law Office, the place of defendant’s residence, was remote from any bank; that a safe private conveyance thence to Charleston was not likely to be obtained in reasonable time, and that remittance by mail was there usually adopted and had proved safe, it will be perceived that in using the term remit, the defendant had reference to the mail. And the letter of the plaintiffs wherein the defendant is directed to “ remit to us as soon as received,” and told that by so doing he would “ confer an obligation,” shows that the plaintiffs used the term in the same sense as defendant had done. How was the defendant to remit as soon as received, if he was not to do it by mail ?

It has been suggested that the defendant should have cut the bills, and sent halves by one mail, and the other halves by the next mail. This measure of caution may be sometimes advisable, but it is enough for this case to say, that the plaintiffs did not expressly require it, and that its adoption is not so usual that a direction to remit by mail must be presumed to imply it.

Notice of the remittance given immediately afterwards, (to confirm the transaction as some of the witnesses phrase it,) does not appear to the Court to be, in the absence of express instructions, required by reason or established usage. The letter containing the remittance, of course contained notice of it. The expectation of all parties was, that that letter would be received in due course of mail, and the propriety of defendant’s inquiring about it, before the delay of an answer acknowledging its receipt excited his alarm, does not appear so plain, that from the defendant’s delay until February 13th, blameable negligence on his part must be inferred. If the plaintiffs directed the remittance by mail, as we think they did, it was for them to add the requisition of any special formalities not usual in the regular deposit of a letter in the post-office, which they intended to make conditions of their agreement to assume the risk.

The motion is dismissed.

Withers and Glover, JJ., concurred.

Motion dismissed.  