Swtvt, Ch. J .
Where a note, or other obligation, is payable in a certain number of days from the date, the day of 1 he date is always excluded in the computation of the time. This note was, then, payable on the sixtieth day after the date, which, it is agreed, was Sunday.
It has been argued, that as tills note was payable within sixty days, the defendant, as it was unlawful for him to tender payment, on the last day, because it was Sunday, was bound to pay it on the preceding day. But where a note is made payable within a certain number of days, the promissor is not bound to tender payment till the last day : and no suit can ever be maintained against him for non-payment prior to the hist day. Of course, a note pnvnhle within a certain number [73]*73yi days, is payable on the last day in the same manner, as if that had been specified to be the day of payment.
If a note should be made payable on Sunday, in express terms, it would be void, because it would be a contract to do an unlawful act. But if it be payable at a future day, which, by calculation, is found tobe Sunday, and the parties did not intend to make it payable on Sunday, then it would not be void. The question, then, is, if a note falls due on Sunday, whether the tender must be on the preceding or succeeding day. The obligor cannot be bound to tender on the preceding day; for no man is bound to perform a contract before the time of payment; and no action can ever lie against him for non-performance before that time. Though he cannot perform the contract on the day it falls due, because it would be an unlawful act, yet that does not exonerate him from his obligation. It would be unjust to subject him to pay damages for the non-performance of a contract when it was unlawful to do it. The only way, then, to do justice to both parties, is, to permit the tender to be made on the succeeding day | and this is conformable to a general principle of law, that where the obligor cannot perform a contract according to the literal terms of it, he shall perform it as nearly as possible. This violates no principle, and does justice to all the parties. I think, then, the correct rule is, that when an obligation falls due on Sunday, the obligor shall be bound to tender a performance of it on the succeeding day.
It is said, in the case of bills of exchange and negotiable notes, where days of grace are allowed, that they are by the custom of merchants, sanctioned by law, payable on the third day of grace $ yet if that day happens to be Sunday, then they are payable on the preceding day ; and that this principle applies to the case in question. But the same custom of merchants, which has indulged three days of grace, after a note is due. if that day is not Sunday, — allows but two where it is Sunday ; and it being an indulgence, it is perfectly consistent to require payment on the second day of grace, to avoid giving four days of grace : but this is a very different thing from requiring a note to be paid before it is due. ■ ■ .
By the words s: wholesale factory price,” could not have been intended the cash price, but must have referred to some [74]*74general rule known to cotton manufacturers. It was, therefore, proper to leave it to the jury to ascertain by the evidence, as a matter of fact, what was the wholesale factory price.
The tender was made at a proper and reasonable time, under all the circumstances.
I would not advise a new trial.
TkumbuIiX, J. was of the same opinion.
Edmond, J.
In this case, sundry exceptions are taken to f-he charge given to the jury ; and there is also a motion in arrest, founded on the supposed insufficiency of the defend ant’s plea in bar.
I am satisfied with the charge given by the court to the jury j and should not advise a new trial on that account.
What is the legal import of the words “ wholesale factory prices” used by the parties in the contract, was not the question ; but, to what standard, by the use of those words, the parties intended to refer, by which to regulate the price of the cotton yarn.
Where there is an ambiguity, which cannot be satisfied without going out of the instrument, as where there is a devise to a person by name, and there is more than one of the same name ; of a farm, and there are several answering to the. same description, &c,, it is a question of fact, not of law s testimony is admissible ; and the quest ion is a proper one to he submitted to a jury.
As to the tender. W here payment is to be made by contract, in specified articles, on a day certain, the creditor is reasonably entitled to such a tender as will enable him, if he chusc to do it, to examine the articles, and see whether they comport: with the articles stipulated to be paid in quantity and quality, before lie is bound to receive them, in satisfaction of bis claim. If, however, the debtor is present at the time and place, ready to deliver the articles corres, ponding in all respects with the terms of the contract, in season for such an examination, and waiting for that purpose, and to make a tender, the creditor cannot have right, by any act or neglect of his own. to deprive the debtor of his privilege to make a tender in satisfaction of his debt in all that day j and that being done in the manner stated, the contract is not only reasonably, but literally, complied with. [75]*75on the debtor's part ; he is not chargeable with a breach of contract; am! if the creditor suffers an inconvenience or loss, it is to be imputed only to his misfortune or negligence.
In respect to ¡ he construction of the words in the obligation, “ in sixty days from dale*’* By the plain import of the words, the day on which it is dated is excluded ; otherwise, a note payable in one day from date, would be a note payable on demand, and a suit thereon might be instituted immediately. With this construction, the sixtieth day from date was the Sabbath : and the question arises whether the note was payable on Saturday or Monday ? If payable on Saturday, the plea in bar is insufficient; otherwise, not.
On which of the days a tender in such cases ought to be made, is not so important, in my view, as that the question should be settled and at rest.
It however appears to me, that Saturday was the day on which a tender ought to have been made, and fhat the rule should be so settled.
In a contract to perform within a stipulated number of days, it is not usual to enter into a minute calculation of the number of Sabbaths that may intervene, and which will go to make up the number of days agreed on. The understanding of parties is, to take the days in succession as they arise, wild her Sabbalk, or not; and there is no more reason for casting the last Sabbath, than the first, out of the number. None, by the terms of the contract, are to be excluded •, nol-is an exclusion necessary to the execution or validity of the contract. The fair intent of the parties to the contract is to be presumed to be (and there is nothing in the contract to rebut the presumption,) that it should he performed at a time when it might be lawfully performed ; and that that time should be in sixty
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Swtvt, Ch. J .
Where a note, or other obligation, is payable in a certain number of days from the date, the day of 1 he date is always excluded in the computation of the time. This note was, then, payable on the sixtieth day after the date, which, it is agreed, was Sunday.
It has been argued, that as tills note was payable within sixty days, the defendant, as it was unlawful for him to tender payment, on the last day, because it was Sunday, was bound to pay it on the preceding day. But where a note is made payable within a certain number of days, the promissor is not bound to tender payment till the last day : and no suit can ever be maintained against him for non-payment prior to the hist day. Of course, a note pnvnhle within a certain number [73]*73yi days, is payable on the last day in the same manner, as if that had been specified to be the day of payment.
If a note should be made payable on Sunday, in express terms, it would be void, because it would be a contract to do an unlawful act. But if it be payable at a future day, which, by calculation, is found tobe Sunday, and the parties did not intend to make it payable on Sunday, then it would not be void. The question, then, is, if a note falls due on Sunday, whether the tender must be on the preceding or succeeding day. The obligor cannot be bound to tender on the preceding day; for no man is bound to perform a contract before the time of payment; and no action can ever lie against him for non-performance before that time. Though he cannot perform the contract on the day it falls due, because it would be an unlawful act, yet that does not exonerate him from his obligation. It would be unjust to subject him to pay damages for the non-performance of a contract when it was unlawful to do it. The only way, then, to do justice to both parties, is, to permit the tender to be made on the succeeding day | and this is conformable to a general principle of law, that where the obligor cannot perform a contract according to the literal terms of it, he shall perform it as nearly as possible. This violates no principle, and does justice to all the parties. I think, then, the correct rule is, that when an obligation falls due on Sunday, the obligor shall be bound to tender a performance of it on the succeeding day.
It is said, in the case of bills of exchange and negotiable notes, where days of grace are allowed, that they are by the custom of merchants, sanctioned by law, payable on the third day of grace $ yet if that day happens to be Sunday, then they are payable on the preceding day ; and that this principle applies to the case in question. But the same custom of merchants, which has indulged three days of grace, after a note is due. if that day is not Sunday, — allows but two where it is Sunday ; and it being an indulgence, it is perfectly consistent to require payment on the second day of grace, to avoid giving four days of grace : but this is a very different thing from requiring a note to be paid before it is due. ■ ■ .
By the words s: wholesale factory price,” could not have been intended the cash price, but must have referred to some [74]*74general rule known to cotton manufacturers. It was, therefore, proper to leave it to the jury to ascertain by the evidence, as a matter of fact, what was the wholesale factory price.
The tender was made at a proper and reasonable time, under all the circumstances.
I would not advise a new trial.
TkumbuIiX, J. was of the same opinion.
Edmond, J.
In this case, sundry exceptions are taken to f-he charge given to the jury ; and there is also a motion in arrest, founded on the supposed insufficiency of the defend ant’s plea in bar.
I am satisfied with the charge given by the court to the jury j and should not advise a new trial on that account.
What is the legal import of the words “ wholesale factory prices” used by the parties in the contract, was not the question ; but, to what standard, by the use of those words, the parties intended to refer, by which to regulate the price of the cotton yarn.
Where there is an ambiguity, which cannot be satisfied without going out of the instrument, as where there is a devise to a person by name, and there is more than one of the same name ; of a farm, and there are several answering to the. same description, &c,, it is a question of fact, not of law s testimony is admissible ; and the quest ion is a proper one to he submitted to a jury.
As to the tender. W here payment is to be made by contract, in specified articles, on a day certain, the creditor is reasonably entitled to such a tender as will enable him, if he chusc to do it, to examine the articles, and see whether they comport: with the articles stipulated to be paid in quantity and quality, before lie is bound to receive them, in satisfaction of bis claim. If, however, the debtor is present at the time and place, ready to deliver the articles corres, ponding in all respects with the terms of the contract, in season for such an examination, and waiting for that purpose, and to make a tender, the creditor cannot have right, by any act or neglect of his own. to deprive the debtor of his privilege to make a tender in satisfaction of his debt in all that day j and that being done in the manner stated, the contract is not only reasonably, but literally, complied with. [75]*75on the debtor's part ; he is not chargeable with a breach of contract; am! if the creditor suffers an inconvenience or loss, it is to be imputed only to his misfortune or negligence.
In respect to ¡ he construction of the words in the obligation, “ in sixty days from dale*’* By the plain import of the words, the day on which it is dated is excluded ; otherwise, a note payable in one day from date, would be a note payable on demand, and a suit thereon might be instituted immediately. With this construction, the sixtieth day from date was the Sabbath : and the question arises whether the note was payable on Saturday or Monday ? If payable on Saturday, the plea in bar is insufficient; otherwise, not.
On which of the days a tender in such cases ought to be made, is not so important, in my view, as that the question should be settled and at rest.
It however appears to me, that Saturday was the day on which a tender ought to have been made, and fhat the rule should be so settled.
In a contract to perform within a stipulated number of days, it is not usual to enter into a minute calculation of the number of Sabbaths that may intervene, and which will go to make up the number of days agreed on. The understanding of parties is, to take the days in succession as they arise, wild her Sabbalk, or not; and there is no more reason for casting the last Sabbath, than the first, out of the number. None, by the terms of the contract, are to be excluded •, nol-is an exclusion necessary to the execution or validity of the contract. The fair intent of the parties to the contract is to be presumed to be (and there is nothing in the contract to rebut the presumption,) that it should he performed at a time when it might be lawfully performed ; and that that time should be in sixty days is expressly stipulated, and will admit of no other construction. The obligation as to the number of days is dear, explicit and unconditional. The debtor’s obligation is absol ute. He is, then, by the terms of the contract, to have the uttermost convenient time, within the number of days limited, in which the act can lawfully he done, and no longer. To extend it to Monday, is to make a contract for the parties, not contemplated, and subjects the indorser, if any, to delay of notice of non-payment; for K > he tender maybe made in all Monday, the sixiy-second dav [76]*76will be the first day he can have notice, or a right of recurrence to the indorser.
I would therefore advise, that the plea in bar is insufficient, and that the motion in arrest ought to prevail.
Smith, J,
There is no doubt that a contract to be performed on a particular day of the month in future, which turns out to be Sunday, is to be performed on the day following. The only doubt which I have felt, in the present case, has been, whether the obligor, by contracting to perform within sixty days, has not bound himself, at all events, to perform within that lime, so that if the last day is Sunday, he is still bound to do it within the stipulated period, by taking the last convenient legal time. But on reflection, I am inclined to construe a contract of this kind to be a contract to be performed on the sixtieth day ; and if so, that being Sunday, it may be performed the day following.
Bkainarh, J, concurred fully in the opinion delivered by €h. J. Swift.
B Aim win, J.
The day of the date being excluded, the note fell due on Sunday. The question then is, whether it was payable on Saturday, or on Monday. It is agreed, that bills of exchange and negotiable notes, which fall due on Sunday, are payable, and must be demanded, on Saturdaybut it is claimed, that this is confined to negotiable instruments, which, by the law merchant, are limited to two days when the third falls on Sunday. But no adjudged case is adduced in support of it. I see no reason for such a distinction. The days of grace are now considered part of the time of credit j and a negotiable note for sixty days is as really a note for sixtv-three, as it would be, if so expressed in any other instrument. The time of payment is, by computation, as certainly fixed, as if the day of the month was precisely named. When the time of payment is ascertained, the debt- or is entitled to the uttermost convenient time to make it; and at that lime, the creditor may demand it. Each has his rights. On Sunday, payment cannot legally be made. What, then, is the uttermost convenient time within which payment can legally be made ? It appears to me, it is Saturday : for [77]*77it yon withhold it till Monday, you extend the contract beyond the agreement of the parties. 4
This is analogous to the principles acknowledged by all, to be applicable to contracts to pay money into banks, to transfer stocks, Ac. on a particular day. The party bound to pay or transfer, is entitled to the uttermost convenient time ; but that is limited to banking hours in the one case, and to the time the books are kept open in the other. This may be 12, or 2 o’clock, and the party is thereby cut short of a part of the day or time within which he stipulated to perform his contract. But he cannot, therefore, claim another day. That would extend the contract. So in this case, he is entitled to the uttermost convenient time within the sixty days in which payment could be legally made. It could not be legally made on Sunday ; therefore, it must be made on Saturday.
Goddard, J. concurred in the opinion delivered by Ch. J. Swift, on all the points.