Opinion
(Fall Riding, 1801.)
1. A note for money, dischargeable, however, in specific articles, is not negotiable.
2. Where a note promises to pay money dischargeable in specific articles of several kinds, a tender of all the different kinds of articles must be proved, not of some, only sufficient in value to discharge the debt.
3. A tender of a certificate for timber lying on the bank of the river, and there inspected, is not sufficient.
THIS action was brought to recover damages for breach of a contract in writing, promising to pay money, dischargeable, however, in specific articles.
This note is not negotiable, and you must prove the consideration.
Whereupon Martin, for the plaintiff, called a witness and proved the consideration; and then a question arose concerning the tender.
The money is dischargeable in plank, staves, and shingles. You must prove a tender of all the articles, not of some, only enough in value to discharge the debt. A tender of a certificate for timber lying on the bank of the river, and there inspected, is not a sufficient tender. The certificate is evidence, at most, only that lumber had been inspected, not that it was at the place of inspection at the time of the tender.
NOTE. — As to the first point, see Hodges v. Clinton, 1 N.C. and the refences [references] in the note.
Upon the question of tender see England v. Witherspoon, 2 N.C. 361; Bell v. Ballance, 12 N.C. 391; Mills v. Huggins, 14 N.C. 58; Mingus v. Prichett, ibid, 78; Mobley v. Fossett, 20 N.C. 96.
Cited: Poteet v. Bryson, 29 N.C. 340.