
    NASHVILLE:
    JANUARY TERM, 1826.
    Tiernan vs. Napier.
    ^ P*ea ten<^er sPeci6c articles is not a dilatory plea, but a plea to the merits of the action, and may be filed after a judgment on a writ of enquiry is set aside, and leave given to amend by pleading to the merits of the action.
    After a cause has been remanded from the Supreme to the circuit court, and a writ of enquiry executed upon a default taken in the latter court, the judgment on the default and enquiry may be set aside and the pleadings amended, if the justice of the case seems to require it, under the act of 1809, ch. 49, sec. 21.
    Where a plea states that the defendant was ready at the day specified, and is yet ready to deliver specific articles according to his contract, the defendant is not compelled to prove that he was ready after the day specified; it devolves upon the plaintiff to falsify it if he can, by replying and proving a subsequent demand and refusal.
    A plea by the defendant that he was ready on the day, and at the place appointed by the contract, or by the notice to deliver specific articles according to his contract, must allege that the defendant was at the place to the last moment, or uttermost convenient time of the day appointed, ready to deliver the articles, or it will be insufficient. 1
    Where, in a contract for the delivery of specific articles, no day is fixed upon for their delivery, but by the terms of the contract it is the duty of the defendant to notify the plaintiff when he would be ready to deliver, a plea by the defendant that he gave notice of the day, and was ready upon that day to deliver, must show the time when the notice was given, and the interval between it and the day appointed for the delivery, and that the intermediate time was sufficient for the plaintiff to prepare for going to the place appointed, prepared to receive them and convey them away, or it will be defective.
    This cause had been before the Supreme Court at Charlotte, June term, 1823. The disposition then made of it will be seen in Peck’s Reports, 212. The contract sued on was as follows: The defendant gave his promissory note to the plaintiff for sixteen thousand nine hundred and twenty two pounds of castings, “to be paid at his furnace on Jones’ creek, in Dickson county, Tennessee, so soon as his furnace should be able to make the next blast after said contract.” The contract was made in 1820.
    The record was filed under the order of the Supreme Court at September term, 1823; at March term 1824, the writ of enquiry of damages was executed, when the jury found for the plaintiff eight hundred and ninety eight dollars forty seven cents. A motion was made to set aside the finding of the jury, on an affidavit of the defendant, Napier, stating that he had merits. On the affidavit, the court set aside the finding of the jury, and the defendant filed a plea, stating that the contract was made in the county of Dickson, that the time of payment was uncertain, being to be paid when Napier, at his furnace, should have made the quantity in the agreement at the next blast. Averment, that on the 18th of December, 1820, at his furnace on Jones’ creek, he had made the quantity of castings, to wit, sixteen thousand nine hundred and twenty two pounds, and had them ready to deliver then and there, and that notice thereof was given of readiness to pay, &c. and that said defendant always has been ready, and now is ready, to deliver the same to the plaintiff. To this, on the docket is entered, “replication and issue.” A jury was called upon the issue, and found a verdict for the a new trial was moved for and refused; a bill of exceptions was taken. The plaintiff proved the selling price of castings to be from four and a half to five cents per pound, at the furnace on Jones’ creek, at the time the payment should have been made.
    The defendant introduced a witness and agent, who proved that the furnace went into blast about the-day of December, 1820; that it continued in blast several months, and could have made the quantity of castings stated in the note in a week or ten days; that on the 17th of that month, he, with said Napier, was in Clarksville, and that he, at the request of Napier, wrote to one James Breathitt, in the town of Hopkinsville, Kentucky, informing him that the furnace was in blast, that Napier was ready to comply with his contract, and that he might come for his castings, which letter on the same day was put into the post office, directed to said Breathitt. Said witness also proved,, that at the time of writing, Napier had plenty of castings on hand, of the proper kind, and so continued to have for a considerable time thereafter; and said witness said also, that he knew nothing of the contract between Tiernan and Napier at the time. Another witness proved facts to establish the agency of Breathitt.
    The court charged, that this was prima facie evidence of notice, and that it must stand until disproved. And that when notice was thus given, that the furnace was in blast, and the defendant ready to pay, it brought the case within the act of 1807, for regulating property contracts, in cases where either time or place was not specified, and that before Tiernan could have maintained his suit, a demand ought to have been made at Napier’s furnace of the castings, or ten days notice of the time he was willing to receive them, have been given, according to the provisions of said statute.
    He also charged the jury, that if notice was given as aforesaid, it was not necessary for the defendant to prove the averments in his plea, of always ready, and still ready to deliver the castings according to the contract, because the replication to the defendant’s plea was general; that before the defendant would be compelled to prove said facts, the plaintiff must rejoin specially, “subsequent demand and refusal.”
   Haywood, J.

delivered the opinion of the court.

It is first argued, that after the writ of enquiry, executed at the second term of the circuit court, after the cause was sent back from the Supreme Court, the plea of tender ought not to have been received, this being considered as a dilatory plea, and for that reason treated as an unfavored plea; that it cannot be pleaded after an imparlance, or other proceeding, from whence it may be implied, that the defendant was not then ready to deliver the specific article required by the contract.

Whatever the law might formerly have been, it is now considered as a fair and honest plea to the merits of the action, may be pleaded after an imparlance, and is considered as an issuable plea. 1 Burr. 59: 1 H. B. Rep. 369.

The circuit court, after the cause is remanded to it, may receive it or permit the pleadings to be amended, if the justice of the case seems to require it, urider the act of 1809, ch. 49, sec. 21. The objection to the admission of the plea, or the amendment thereof, is not a valid objection, for it may be as well received as any other plea which is calculated to bring the merits of the cause on trial, if as drawn and offered a good plea.

It is next argued/ that'the plea itself as amended and received, is not a good plea, for that notice to the plaintiff of the time when the defendant would be ready to deliver the castings, should.be shown to be a reasonable notice, giving time between the notification and the .day appointed for delivery, for the plaintiff to prepare himself for receiving the castings, and to come to the place prepared to receive them and carry them away. Co. Lit. 211: Dyer, 354. Also, that the plea should have shown that the defendant was ready on the day appointed to deliver the castings at the place agreed on by the contract, and continued there ready at the last moment of the day, to make the delivery, and that the plaintiff, or any person for him, did not attend on any part of that day to receive the castings.

And as to that part of the plea which states the defendant on that day, and always afterwards was ready, and is yet ready, to deliver the castings, should have been proved by evidence, whereas the judge instructed the jury that no proof to this effect was necessary. This objection we will first answer. If the plaintiff can falsify this part of the plea, he avoids it, and this should be effected by a replication, stating a request to deliver and a refusal, at some time after the day alleged to be fixed by the notice for the delivery; but if the plaintiff cannot falsify it, by replying and proving the request and refusal, or at least by proving a request, whereupon judgment is rendered on this point of the plea, it stands unimpeached. The defendant need not prove it, but the plaintiff may falsify if he can. Willes’ Rep. 632: 2 Salk. 622: 1 Ld. Ray. 254: Carth. 413: 12 Mod. 182: 2 Salk. 623: 10 Mod. 81: 1 Lutw. 227: 8 Term, 629.

As to the alleged defect in the plea for not stating that on the day appointed by the notice for delivering the castings, the defendant was * at the place to the last moment or uttermost convenient time of the day ready to deliver, he certainly was not ready on his part, if that fact be not shown. Co. Litt. 211: Plow. 172, 173: 5 Rep. 114 The plaintiff is not bound to attend the whole day from morning, but may come at the least convenient part of the day, and then the defendant must be ready, and the plea is not good for want of this allegation. And as to the notice of the day on which the defendant would be ready, the plea should show the time when the notice was given, and the interval between it and the day appointed for delivery, and that the intermediate time was sufficient for the plaintiff to prepare for going to the place appointed, prepared to receive the castings, and to convey them away. In both these last instances, therefore, the plea is defective, and therefore should not have been received. The judgment should be reversed, and judgment be now given for the damages assessed on the writ of enquiry. And we are strongly inclined to believe that the plea should also set forth, that the castings, to the amount specified in the contract, were set apart and identified, where the articles are not perishable, to the end that if not delivered, when demanded subsequently to the plea, the plaintiff may recover in trover for them. 1 Roll’s Rep. 443. But this point we do not now mean to decide.

Judgment reversed.  