#### HUGH HAMILTON vs. JOSEPH ELLER.

An obligation for a certain sum, payable in specific articles at a particular time and place, becomes, after it is due, necessarily an obligation payable in money, unless the defendant pleads and proves a tender of the article^, at the time and place mentioned in the contract.

Appeal from the Superior Court of Law' of Buncombe County, at the Spring Term 1848, his Honor Judge Battle presiding.

This is an action of debt on a bond for $150, dated July 14th, 1842, and ■* payable January 1st, 1844, in good trading, to be valued and delivered at Eller’s house.” I’lea, payment. Before the jury was empannelled, the defendant, upon the authority of a letter from the plaintiff to him, moved to dismiss the suit, but the Court refused the motion. In support of the issue, the defendant gave evidence, that, before the bond fell due, and while the plaintiff held it, the plaintiff and the defendant agreed, that any debts of the plaintiff to other persons, which the defendant would discharge and take up, should be allowed as payments on this bond; and the defendant then produced several justices’judgments against the plaintiff to the amount of the bond, and alleged that he paid them before the bond fell due, but gave no evidence thereof.— On the part of the plaintiff, evidence was then given, that, on the 1st of January 1844, one Deaver, to W'hom the plaintiff had transferred the bond, attended at Eller’s house to receive payment, and Eller then tendered him some old horses and other specific articles, of the value *277of $150. as then alleged by the defendant, which Deaver refused to receive, on account of their deficiency in quality.

The Court directed the jury, that the sums due on the judgments were not payments on the bond, unless the parties had applied them, or agreed to apply them, to it; and that, whether such was the fact or not, it was for them to enquire, and, in doing so, they might consider that the defendant tendered other things in discharge of the bond, after the period, at which he alleged he had paid it by taking in the judgments. The Court also in* structed the jury, that, unless they should find it to have been paid, they were to consider it as a bond for $150, payable absolutely iu money, and allow interest accordingly. After a verdict and judgment for the plaintiff, the defendant appealed.

N. W. Woodjin, tor the plaintiff.

J. W. Woodfin, for the defendant.

Ruffin, C. J.

The motion to dismiss was not made by the plaintiff or his attorney, but by the defendant, and, as must be understood, against the will of the plaintiff at that time. The alleged letter, under which the defendant assumed the authority, is not set forth, and, hence#. it cannot be seen here, that it conferred it, and that his Honor erred, supposing that the motion could be entertained under any circumstances. We do not, therefore,consider that point; which, moreover the defendant abandons, as he states, that both he and the plaintiff have been-enjoined, at the suit of Deaver, from dismissing this suit.

The instructions to the jury were very indulgent to the defence, in leaving it to the jury to draw inferences to-an extent not warranted by the defendant’s own evidence.For he gave no evidence, that he had paid the judgments against the plaintiff; and, moreover, if he ever paid *278them, he failed to show that he did so before his piea in this suit. For this latter reason, if no other, the verdict should have been against the defendant on that issue.

The instrument is an obligation for $150, and is necessarily payable in money, unless it was discharged in specific article or the due tender of them at the day and place specified, of which there was no plea.

Per Curiam. Judgment affirmed.