Sec 574

A lessor's covenant to repair is ordinarily conditioned on notice being given to him of the defects requiring repairing. It may be that certain repairs, from the nature of the building, have to be done at stated intervals, and as to these he will not require notice. But as the premises are not open to his continuous inspection, any damages by casualty, or even by ordinary wear and tear, so it has been held in England, must be notified to him in case it is desired to fix him with the duty of repairing;3 though in this country this has been doubted as to matters concerning which the landlord ought himself to take notice.4

3. Request or demand.

Sec 575

Unless there is a specific stipulation that a debt shall not be due until a demand is made, a demand is not necessary to make the debt suable. "A request for the payment of a debt is qute immaterial, unless the parties to the contract have stipulated that it shall be made; if they have not, the law requires no notice or request; but the debtor is bound to find out the the money so paid could be recovered back from the defendant who had received it.

Lessor's covenantto repair is conditioned on notification.

Ordinarily prior demand is not necessaryto indebtedness.

"So the defendant in the case before us might be held responsible for the truth of facts presumed to be within his own knowledge, and for an implied affirmation that so far as he was connected with it the draft was not defective. It is not denied, however, that the signature of the drawer was genuine, nor that the person presenting the draft, and for whose consideration Pickering indorsed it, was the payee appearing upon its face at that time. The trial court does not find that the payee's name as indorser was forged; it finds no undertaking on the testator's part, save that of an indorser; and we concur with the general term in the opinion that his liability was not established. There is no evidence of any intention to create any liability except as indorser. He had all the rights and privileges of one, was therefore subject only to the obligations which that relation imposed, and as he was not charged according to the law merchant, he cannot be held." 1 Wh. on Neg. sec 59 et seq.

2 Clark v. Bigelow, 16 Me. 246; Manchester Bk. v. Fellows, 8 Foster, 312; Bank of Utica v. Bender, 21 Wend. 543.

3 Makin v. Watkinson, L. R. 6 Ex. 25.

4 Haydon v. Bradley, 6 Gray, 425.

[CflAP. XVII.

creditor, and pay him the debt when due."1 - Even the insertion of the words "payable on demand" in a promissory note, does not make prior demand necessary to the institution of a suit,2 though when a note is made payable at a particular place, it must be presented for payment at that place,3 and where the note is payable in specific articles, the specific articles should be demanded.4 And "when a party accepts a negotiable bill, he binds himself to pay the amount without notice to whomsoever may happen to be the holder, and on the precise day on which it becomes due."5 Even when a demand is required, it need not be in writing unless required by the contract,6 nor need it be exact in amount unless this be needed to individuate the debt.7 - A party who puts it out of his power to perform a contract may be sued without demand, even though the time specified for performance has not arrived.8 This is eminently the case with regard to promises of marriage.9 A party who shows by his conduct that he does not consider himself bound, cannot complain that marriage was not demanded by the other side.10

1 Parke, B., in Walton v. Mascall, 13 M. & W. 458; adopted in Leake, 2d ed. 647. See Wolf v. Marsh, 54 Cal. 228; and see infra, sec 881.

2 Norton v. Ellam, 2 M. & W. 461; Maltby v. Murrels, 5 H. & N. 813; Little v. Blunt, 9 Pick. 488; Wenman v. Mohawk Ins. Co., 13 Wend. 267; Wheeler v. Warner, 47 N. Y. 519; Fleming v. Potter, 7 Watts, 380.

3 Leake, 2d ed. 642; Byles on Bills, 9th ed. 205; infra, sec 871.

4 Lobdell v. Hopkins, 5 Cow. 518; Vance 0. Bloomer, 20 Wend. 196; Rice v. Churchill, 2 Denio, 145.

5 Parke, B., Poole v. Tunbridge, 2M. & W. 225; see Cotton v. Godwin, 7 M. & W. 147; City Bank v. Cutter, 3 Pick. 414.

6 Colby v. Reed, 99 U. S. 560.

1 Ibid.

8 Infra, sec 885 a; and see also infra, .sec 603.

9 Supra, sec 324; infra, sec 606.

10 Wagenseller v. Simmers, 97 Penn. St. 465. In this case Mercur, J., said: "It was not necessary that he should say to her in express words, ' I will not marry you,' nor that she should run after him and say, ' I entreat you to marry me.' Marriage is a civil contract. A refusal to fulfil it may be as unmistakably manifested by conduct as by words. The true question was, whether the acts and conduct of the plaintiff in error evinced an intention to be no longer bound. This has been held a correct rule in case of an agreement of sale of personal property. Freeth v. Burr, L. R. 9 C. B. 208. We think this rule applies with greater reason to a marriage contract which should rest on mutual affection. His denial that he had ever promised to marry was very strong evidence of a refusal. Coupled with his acts it fully justified the jury in finding a refusal." See infra, sec 606, 885 a, 995.