Brooks v. Hicks

197 S.E.2d 711, 230 Ga. 500, 1973 Ga. LEXIS 965

• Court: Supreme Court of Georgia
• Decided: April 25, 1973
• Docket: 27736
• Status: Published

Opinions

Per curiam.

The appellant and the appellees entered into a twelve-month option on July 21, 1971, which provided that it would terminate upon the failure to pay $3,750 on the 21st day of each month during said term. The appellant failed to pay said sum on Sunday, May 21,1972. His tender of said amount the following day was refused. On motion for summary judgment the trial court held that the option had terminated. Held:

The facts of this case show that the appellant paid, from the inception of the option through April 1972 the sum of $37,500 to preserve his rights to the optioned property. To hold that his failure to tender $3,750 on Sunday, May 21,1972, at a particular business address came too late perpetrates an injustice to which this court will not lend its aid. It is fundamental that forfeiture of rights is not favored. McDaniel v. Mallary Bros. Machinery Co., 6 Ga. App. 848 (1) (66 SE 146); Pearson v. George, 209 Ga. 938, 944 (77 SE2d 1).

It is true that Code Ann. § 102-102 (8) is a rule of statutory construction, and does not, as was held by the Court of Appeals in Maxwell Bros. v. Liverpool & London &c. Ins. Co., 12 Ga. App. 127, 131 (76 SE 1036), apply to contractual limitations; yet, this Code Section states a rule of reason with respect to limitations, be they statutory or contractual, which should be applied to limitations in contracts in the absence of any sound reason for not applying them. This question does not seem to have been considered and determined by the courts of many states, but those which have had the occasion to consider the question seem almost, without exception, to have applied the statutory rule to contractual obligations. The cases are reviewed and collected in 86 CJS 897, Time, § 14(10), where it is said, in part: "Although statutes which provided that a terminal Sunday or holiday is to be excluded from a period of time within which an act is to be performed may apply only to acts required by law or to acts to which the statutes refer specifically, and have no application to acts required to be done by private contract where the time for performance is stipulated, nevertheless such statutes provide a safe and sound rule to be observed in the interpretation of contracts where no different meaning is given by the instrument to be construed or where no different intention is manifest from the contract. Accordingly, except where the act is one which may be performed on Sunday, if the time for exercise of rights or performance or tender of performance of an act Under a contract falls on a holiday or Sunday, as a general rule it may be legally performed on the following day, unless that day is a holiday, in which event it may be performed on the next succeeding business day. . . ”

Argued February 14, 1973 Decided April 25, 1973.

In our society, Sunday is a legal holiday on which it is generally unlawful to transact business except works of necessity. While the contract sued on provides that, "If, on the 21st day of any month during the term of this option, selling partner fails to deliver to buying partners the check provided for in the preceding sentence [that is, a bank cashier’s or certified check in the amount of $3,750, and had to be paid at 5555 Memorial Drive, Stone Mountain, Georgia, admittedly a business closed on Sunday], this option shall terminate and selling partner shall thereafter have no rights under this agreement,” and "time is and shall be of the essence of this agreement,” we do not think these provisions need to be construed so as to work a forfeiture. Although Rowell v. Harrell Realty Co., 25 Ga. App. 585 (103 SE 717) and Maxwell Bros. v. Liverpool & London &c. Ins. Co., 12 Ga. App. 127, 131, supra, hold to the contrary, these decisions are not binding on us and we refuse to follow them.

We think this court should accept the old Latin Maxim, "dies dominicus non est juridicus” — Sunday is not a day in law.

Judgment reversed.

All the Justices concur, except Nichols and Undercofler, JJ., who dissent. Hawes and Gunter, JJ., concur specially. McCurdy, Candler & Harris, George H. Carley, for a appellant. Zachary & Segraves, William E. Zachary, Jr., William E. Zachary, Sr., Rich, Bass, Kidd & Broome, Robert K. Broome, for appellees.