author: Swtvt, Ch. J . Edmond, J. Smith, J, B Aim win, J. IIosmer, J. Goci.o, J.

text:
    Avery and another against Stewart and others.

      New-Haven,

    November, 1816.
    THIS was an action on a promissory note of the following icnour:

      “ Lisbon, December 6th, 1815.
    For value received, we jointly and severally promise “ Samuel Jlvery and Son, in sixty days from date, seven “ hundred thirty-four dollars, seventy-six cents, in cotton 'e yarn, at ten per cent, below the wholesale factory prices, to iS be delivered at the Lisbon Cotton-Factory store.
    “ Josiah Rose, as Agt. L. C. F.

      “ Alexander Stewart.”
    The defendants pleaded in bar, that the 4th day of February 1816, was Sunday ; that on the next day, at noon, they gave notice to the plaintiffs, at JVorwich, that they, the defendants, were ready to deliver said cotton yarn agreeably to the terms of the note, and requested the plaintiffs to attend at the Lisbon Cotton-Factory store, and receive payment; that the plaintiffs refused to attend for that purpose, and declared that they w0uld have nothing to do with the business ; that the defendants, hav ing waited at the store until the uttermost convenient hour of the day, did then, viz-, between S o'clock. P. M. and sun-set, offer and tender to the plaintiffs, in cotton yarn, of a good and merchantable quality, warp and woof, at ten per cent, below the wholesale factory prices, in value seven hundred thirty-four dollars, seventy-six cents, that is to say, 10 lb. No. 20. — 10 lb. No. 19. &c. [specifying the numbers, and the weight of each,] in full payment and satisfaction of the note in suit; which the plaintiffs refused to receive j and that the defendants carefully deposited said yarn, thus tendered, in said stoic, and there left the same for the use and benefit of the plaintiffs, as their proper goods and estate. The plaintiffs traversed this plea ; on which issue was joined.

      Where a promissory note, or other obligation, is payable in a certain number of days from the date, the day of the date is to be excluded in the computation of the time.
    Where a promissory note, not negotiable, was made payable in sixty days Cram date. and it fell due on

      Sunday, it was held, that a tender on the Monday following was good. Where payment is to be made, by contract, in specific articles, on a day certain, though the creditor is entitled to a delivery in such season as to enable him to examine and take an account of tire articles before sun-set; yet if the debtor is present at the place of delivery, prepared, in all respects, to deliver the articles in sufficient season, and the creditor neglects to attend to receive them, a tender after sun-set, by day-light, will be good.
    Where a promissory7 note was made payable “ in cotton yam at the wholesale factory pri - ees,” it was held, that evidence of the usage- of manufacturers and dealers in that article, was admissible, to shew that by tlro.se terms was meant a co-tain scale of prices different from the actual wholesale pices ⅛ market

      The cause was tried at New-London, September term 1816, before Edmond. Brainard and Gould. Js.
    On the trial, it was claimed by the plaintiffs, that by the words in the note (i at ten per cent, below the wholesale factory prices,’’ was meant by the parties, ten per cent, below the actual wholesale prices of cotton yarn in the market, at the time when the note became due; and they offered evidence, on their part, to shew what the wholesale factory prices in market actually were at that time.
    The defendants, on their part, contended, and offered evidence to prove, that long antecedent to the execution of the note in suit, the manufacturers of cotton yarn in this state, and in the neighbouring state of Rhode-lsland, at their several factories, had, for the benefit of their trade, and to render that branch of business more useful, a common usage, by which all cotton yarns manufactured for sale, were to be assorted, by a standard, according to their weight and quality, and packed in bundles, and numbered, with printed tickets or labels annexed, designating the number ; that the price of number 12 was eighty-four cents, and to each number above 12 there was an addition of four cents, and from each number under 12 a deduction of three cents ; and that the tariff so adopted was advertised, published and set up in all the cotton yarn factories, and designated by the appellation of « The wholesale factory prices,” which was well known to the parties at the time of making the contract. And the defendants claimed, that by the words “ ten per cent. below the wholesale factory prices,” was meant the wholesale factory prices designated by the tariff.
    The plaintiffs further claimed, and introduced evidence to prove, that the pretended tender of cotton yarn made by the defendants, was actually made on the 5th day of February 1816, after sun-set, at so late a period that the plaintiffs could not have had time to take an account of the yarn.
    The defendants then introduced evidence to prove, that on the forenoon of that day, they called on the plaintiffs at Norwich, and informed them, that they, the defendants, should, on the same day, at the Lisbon Cotton-Factory store, tender the yarn specified in the note; and that the plaintiffs replied, they should do nothing about it.
    The charge of the court to the jury was as follows: “ Whether the quantity of cotton yarn offered was sufficient to meet the contract, must depend, in some measure, upon the price at which it was to be delivered. If by wholesale factory prices, was meant by the parties, the ticket prices, and a tender was actually made by the defendants on the 5th day of February 1816, of a sufficient quantity of cotton yarn, according to those prices deducting ten per cent., and of the stipulated sorts and quality, as alleged in the plea in bar, your verdict will be for the defendants, though the yarn tendered would not, according to the actual wholesale market prices, with such deduction, amount to the full sum expressed in the note. And if by the wholesale factory prices, was meant by the parties, the actual wholesale market prices, at the time when the yarn was to be delivered ; yet if there was a Sufficient quantity tendered to satisfy the note according to the actual wholesale market prices, after deducting ten per cent., and of the stipulated sorts and quality, as alleged in the plea in bar, your verdict will, in that case also, be for the defendants. But if there was no actual tender as before stated ; or if the amount tendered would not, according to the first mentioned or last mentioned prices, be sufficient, after deducting ten per cent., to satisfy the note; your verdict will be for the plaintiffs. As to the time of day at which a tender must be made, where the day and place of payment are appointed in the contract, as they are in this case ; the court is of opinion, that if the debtor is ready to tender, and is present and waiting to make the tender, at ihc. day and place, in season for making and completing the tender before sun-set, and the creditor is absent so that a tender cannot be made to him in person, a tender after sun-set, by day-light, is good.”
    The jury returned a verdict for the defendants. The plaintiffs moved in arrest of judgment, on the ground that the issue was immaterial. They also moved for a new trial, on the ground of a misdirection. The questions arising on these motions were reserved for the consideration and advice of the nine Judges.
    Cleavdaiiti, for (he plaintiffs,
    contended, i. That the day of the date of the note ought to be included in the computation of the time which it had to run ; and in that case, it would become payable on Saturday, the 3d of February, and a tender on any subscrpient day, would unquestionably be bad. Castle ft al. v. liurdill ft ah 3 Trrm lit]). 623.
    2. That if the day of the date were to be excluded in the computation, the note would become due on Sunday, and a tender, to he available, should be made on Saturday.

    That admitting the tender to have been made on the right day, it was not made in proper season.

    4. That the court erred in receiving extrinsic evidence to shew what was meant by “ wholesale factory prices,” and in submitting that question to the jury as a matter of fact; the construction of a contract being matter of law only, and exclusively within the province of the court to determine.

      Halsey and Sherman, contra.
   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 yi 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 general 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. on 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 will 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 it 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.

IIosmer, J.

I concur with the Chief Judge, except in relation to the tender. I think that was too late.

The note was executed on the 6th day of December; and was payable in sixty days from its date. If the day of the date is included, the note fell due on Saturday ; if it is excluded, Sunday became the sixtieth day, or day of payment. Where a person promises to do an act on a future day, which is Sunday, he knows that his promise cannot literally be fulfilled. It must be performed the day before, or the day after, the one prefixed. On which of those days is matter of construction. The correct principle, in my opinion, is this j i hat the performance shall be as near to the agreement as possible, hut must not include a longer period, than the one which the contract expressly assumes.

It is a general rule, “ that when a computation is to be made from an act done, the day in which the act is done must be included.” Rex v. Adderley, Dougl, 462. 464. Castle & al. v. Burdilt & al. 3 Term Rev. 623. Glassington al. v. Rawlins & al. 3 East, 407. The act which gives existence to a deed, is the delivery of it. Rejecting all con - siderations arising from usage, or the necessity of giving a construction rs shall render the deed available, the day of the date of the promissory note under discussion, ivould be included. But the custom of merchants has settled the point differently. The day of the date is excluded from calculation. Chit, on Bills. 338. The note, then, being, by the express appointment of the parties, payable on Sunday, what is the legal construction of this promise ? I answer, that the note became due on Saturday. The words of the contract are equally disregarded, whether the note i? considered to have fallen due on Saturday, or on Monday. It cannot he construed according to the letter. The parties knew , that the note could not he paid on Sunday, and they must have intended it should be performed on the day precedent, or subsequent. Before I assign my reasons, in support of the opinion above expressed, I will consider the arguments relied on to shew, that the note was payable®n Monday. ,

It is said, that where a person stipulates to do an act on a given day, if the law forbids the performance of it at the time, he may perform it as soon after, as is legally possible. This is, undoubtedly, a true position, if the legal impossibility of strict performance, arises posterior to the contract. Shep. Touch, 369. Co, Lilt. 206. a. The question in the case supposed, is not, as it is in the one under discussion, what is the construction of the contract ? But it is, whether the law does not exempt the party from a strict performance, which it has rendered impossible, it was contended, and with perfect correctness, that if a person agrees to do a lawful, act, which circumstances render impossible to perform literally, lie must execute his agreement, as near to the intent of the condition as he may make it. Co. Litt. 219. a. b. Shep. Touch. 369. That is, if a natural or legal impossibility prevent the performance according to the letter, he shall execute his contract pursuant to the spirit and intention of it. Nothing can be more equitable. But, whether the performance, in the case under discussion, is held to be on Saturday, or on Monday, the nearness of the performance with the time literally prefixed, will be precisely the same. The inapplicability of the rule consists in this, that it has no bearing on the material point of controversy. The question is not, whether the defendant shall fulfil his agreement as nearly to the letter of it as he may, and exactly according to its intent and spirit. If it were, the rubí laid down M ould be apposite, and in point. Hot the only enquiry is, what is the legal effect of the note, as to the. lime of performance, —what the construction ? Towards this question, the rule commented on has no direct ion.

It, was said, that the Sunday on which the note was made payable, must be expunged from calculation. Why not, then, on the same principle, strike out all the Sabbaths included within the sixty days ? It requires little discernment to see, that the above position proves nothing. It is merely an inference, and takes for granted the point; in dispute. If the note, by legal construction, is payable on Saturday, the assertion is out of the question. But if Monday is the day of payment, the day before must be excluded from computation. The question recurs, which of those periods is the correct time of payment ? And this is the point which remains to be proved.

Equally unfounded was another assertion, that the prom-issec would not expect, or be ready to receive, the article promised, until after the Sunday expressly appointed. This again is an inference founded on a petitio principii, a begging of the question in dispute. If the contract fell due on Saturday, by construction of law on the terms of tine note, the party promising knew, that he must perform it on that day : and the promissee knew, that he must be ready to receive the article promised. But if, as the assertion presupposed., the note fell due on Monday, that was the time when flu performance would be expected.

It was said, that no person can ho compelled to perform his contract, previous to the time stipulated. If by this is intended only, that the performance of a contract cannot be demanded until the time of payment, according to its genuine intent and construction, has arrived, it is a mere truism, and not susceptible of dispute. But if the meaning is, thal a contract, in the terms of it, payable on Sunday, includes the Monday succeeding before it falls due, it is a proposition I cannot admit, until it is substantiated by proof.

It w'as contended, that as the order to plead in four days, if the fourth day be on Sunday, includes the following day, so a stipulation to perform an act on Sunday, includes the Monday succeeding. This argument is founded on a supposed analogy, and to be of any avail, the analogy must be perfect. The comparison involves a consideration of the words, the subject matter, the effects and consequences, and the reason and spirit of the subjects compared, I shall not trace the dissimilitude beyond a brief enquiry into the reason of the rule relative to pleading, in Lord Conin^slnfs case, 8 Mod. 21. a rule to plead was made on Thursday, giving the defendant four day s. On the following Tuesday, the plea was deposited in the proper office-. An objection was made, that Sunday should be included, and in that court, the plea should have been filed oti Monday. But the court said, « these four days must always be reckoned suris day s where in the defendant may plead, and when the offices are open r. the jileas which are put info the respective offices of Use several courts, were originally pleaded in court: and therefore., Sunday is never reckoned one of these days, because neither courts nor offices are. then ojien,” And in Lee v. Carlton. 5 Term Rep. 642. Buller, J. said, «in some instances, when any act is to be done by the party, in a limited number of days, as in the case of a motion in ar rest of judgment, the party has four laxe days, when the court is actually sitting, in which to do it; and in those cases, Sunday is not one, though it be an intervening day.” But as to the business done out: of court, Sundays are reckoned the same as other days. 20 Vin. Jibr. 64. The different reasons applicable to the cases sujiposed analogous, demonstrate, that one is no example for the other. These are the principal arguments urged by the counsel for the defendants, and in rny opinion, they fall entirely short of the proposition they were adduced to sustain.

I have already observed, that the performance of the contract should be as near to the letter of it, as it may be $ and that it will be equally near, whether the day of payment is considered as being Saturday or Monday. The other branch of my proposition is this, that it must not include a longer period than the one which the contract exjircssly assumes. In other words, the party promising must perform within the time prefixed. To enlarge the, time of a contract, is jus dicerc, non dare. If the contractor has appointed a day on which to perform, when, bylaw, he. cannot, he did it with his eyes open, with full knowledge, that unless his agree ment was void 1'rom the impossibility of performance, is. could not be executed on the day prefixed. What, then, is the reasonable consequence ? As the party promising knew . tliat his contract could not literally be accomplished, and as he knew likewise, that he must perform within the limits of the time assumed, he must have expected and intended to have fulfilled it on Saturday. This, in my judgment, is the fair legal construction. If it wanted fortifying, it would derive it from the well known maxim, a rule of some strictness and rigour, and the last to be resorted to, that the construction is to be most strong against the party promising. 2 Black. Comm. 380.

A person is not always entitled to the full express time stipulated, in which to perform his agreement. If there be a contract to tender stock upon a day certain, “ a tender of transferring may be made at the uttermost convenient time of that day, before the books are shut.” 6 Bac. Mr. 454. And if it were a supposable case, that it was known by a person promising to do an act, that it would be lawful to do it in the former part of the day prefixed, but that all business in the latter part of the day wTas prohibited, would there exist a doubt, that he must perform before the forbidden time rendered it impossible ? Should not the person who lias promised to pay a sum of money on Sunday, a day on which he knows he cannot perform his contract, be considered as stipulating to do it within the time limited, that is, on Satu rday ?

This question, in respect of negotiable notes, has long since been answered in the affirmative. 1 Ld. Raym. 743. Chit, on Bills, 141. " By the custom of merchants, if a bill of exchange, including the three days of grace, falls due on Sunday, the holder must demand the money on Saturday ; and in case it is not then paid, must consider the bill as immediately dishonoured.” I consider the three days of grace, which by usage are allowed in addition to the time stipulated, in bills of exchange, and promissory notes which are negotiable, as if they were expressed on the face of them. They are equivalent to three days superadded to the specified term, aud in no respect to be distinguished. The usage of merchants is not, that there shall be three days of grace on bills, but if the last day happens to be on Sunday, there shall be two only ; but it is universal, and without exception, that there shall be three days of grace. By construction of this contract among merchants, in analogy to the common law, if the day on which the bill falls due, is Sunday, when it can neither be demanded nor paid, it shall be considered as payable on Sntur day. The application of the rule to the present case, 1⅜ obvious and forcible. Between a negotiable note becoming due on Sunday, and a note not negotiable payable at the same time, I perceive a distinction, but no essential difference. The construction, in my opinion, should be the same in both instances. It cannot comport with public convenience, that, a different rule should prevail, in cases so very similar. It is much preferable, that there should be one uniform rule on this subject, than that a diversity should exist, which will embarrass mankind in their intercourse with each other, and may be a fruitful source of error and litigation.

The argument by a sheriff, when an execution, by the terms of it, expires on Sunday, that he should be indulged with the day succeeding to make return, would be, in my opinion, as well founded, as that of the promissor of a note made payable at the same time. But it is established law, that “ if the return day of the writ be on Sunday, and the return appears to be made on that day, it will be bad ; nor can it be made on any day subsequent.” 1 Back. Slier. 259.

In fine, in my judgment, one uniform rule of construction on the point under discussion, is desirable. The person who promises to do an act, must, at his peril, if there has no impossibility arisen posterior to the engagement, perform within the time explicitly assumed. If a contract is stipulated to be performed on Sunday, the legal construction is, that it shall he done on the preceding Saturday, This is agreeable to the usage of merchants, in l’espcct of bills of exchange and negotiable notes ; an usage not arbitrary and founded on no reason, hut bottomed on common sense and common law. And in this opinion I am more deeply confirmed, since no case has been adduced to shew, that a person has been allow ed a period to perform in, beyond the express limitation oí his contract.

Goci.o, J.

Upon ihe motion for a new 1 rial, the question first in order, is, whether parol evidence was admissible, to show what was meant by the words, i; wholesale factory prices” ? These words, I confess, would seem tí) me, prima facie, to import the actual wholesale market prices, at the factory. But if this, or any other similar term, is, by the common consent, and general usage, of all dealers in a particular branch of business, used in a different sense, and so understood by tlieir customers | there can be no reasonable objection to a party’s proving it by parol. It is like the common case, of any term of measure, or quantity, used, in particular places, or in particular branches of business, in a sense different from the common one ; and, like any other latent ambiguity, may be explained by parol evidence. The other question, presented under this motion, may be more conveniently considered after those, which have been raised under the motion in arrest of judgment.

Under the latter motion, the first enquiry is, on what day the note was, by the terms of it, payable ? And upon this point the question is, merely, whether the day, on which it was executed, is to be includedor excluded, in the computation? This, considered as an original question, is a mere question of inten - tion. And therefore, without entering, at all, into the distinctions, discussed in the case of Pugh v. Leeds, and other similar cáses, relating to conveyances,— it is sufficient to say, that those distinctions have no application to personal contracts, like the present. In such contracts, when payable at a given time from or after date, there can be no doubt, that, according to the understanding and intention of the parties, (which, if not contrary'to the rules of law, certainly ought to govern the construction,) the day of the date is to be excluded. And this 1 take to be the true rule. Otherwise, he who gives an obligation this day, for the payment of money, one day after date, is suable inst(inter, though the contract imports to be payable in future \ and the appointment of a future time of payment is useless and void. In the case of bills of exchange and promissory notes, the day of the date is, confessedly, excluded; and what difference car* there be, in this respect, between a contract for the payment of money, and one payable in specific articles ?

According to this view of the subject, the note in question became payable on Sunday. But payment on that day, is prohibited by law. The question, then, arises, whether the tender should have been made on Saturday or Monday. It has been argued, that the debtor, in such a case, must, at liis peril, pay or tender, at all events, within the time appointed. It would seem to me quite as reasonable, to say, that he cannot, in any event, be required to pay, nor the creditor to accept payment, before the time appointed. It is true, as to contracts, on which days of grace are allowed, that if the last of those days is Sunday, payment must be ma,]e on Saturday. But the allowance of grace was, originally, a mere indulgence, which it might be very reasona-hie to qualify with greater strictness, than if it had been dcmandable, as a matter of right. At any rate, the allowance of grace is an anomaly ; and the rules, resulting from from it, are, of course, not to be extended by analogy.

Upon the whole, the doctrine, which appears to me most reasonable, is, that as Sunday cannot, for the purpose of performing contracts, be regarded, as a day in law ; it. is, as to that purpose, to be considered, as stricken from the calendar : though intervening Sundays are, doubtless, to be counted, as in all other computations of time ; because they are not appointed for the performance of any act. And this distinction is analogous to the modes of computation, under the common rule for pleading in abatement. 3 Term Rep. 642, If this view of the question is just, it follows, that, in the note, on which the present action is brought, the Monday, on which the tender was made, must be considered as the sixtieth day, and of course, the true day of payment.

As to the time of day, at which the tender was made,— the point upon which it is said the jury were misdirected,— I cannot persuade myself, that the rule, requiring a tender to be made before sun-set, was ever meant to apply to cases, where the creditor is absent through the whole day. The rule was made for his convenience; that he might have a fair opportunity to examine, compute, and take an account of, the money, or other property tendered. But if he will not appear, at all, at the place appointed, to avail himself of the benefit of the rule, he waives it: for it can be of no pos - sible advantage to him. While at a distance from the place, where the property is, he can no more examine it, by daylight, than in the dark. And his right and opportunity to make a subsequent examination, is the same in the one case, as in the other.

I concur in the opinion, Unit neither of the motions can prevail..

Motion in arrest, insullicient.

’.New trial not to he granted.


source: Caselaw Access Project

author: Swift, Cb. 3. Goum, J.

license: Public Domain

text:
    Griswold and another against Pitcairn.

      New-Haven,

    November, 1816.
    THIS was an action of assumpsit. The declaration stated, that from the 6th of September, 1809, until the 15th of October, 1810, the plaintiffs were sole owners of the ship Jinn, of New-York, whereof Hezekiah Smith was master, appointed by the plaintiffs, and their agent; and that on the 6th of September, 1809, at Hamburgh, said ship then lying at Tonningen, the plaintiffs, by their said agent and master of said ship, entered into a charter-party with James Neville and others. The charter-party was recited in the declaration, and was between James Neville and others, of the one part, freighters, and IJezekiah Smith, master of the Ann of New-York, of the other part, letter, for a voyage from Ton-ningen, in ballast, to Riga, thence to Belfast, or, on further orders, to Liverpool or Dublin. Then followed the several undertakings of the parties. The declaration, after reciting the charter-party, stated, that Neville being a stranger to them, it was then and there agreed, that Pitcairn, the defendant, should guaranty the fulfilment of the charter-party, on the part of Neville, and thereupon, by a writing under his hand, bearing date the 7"th of September, 1809, Pitcairn did “ guaranty to capt. Hezekiah Smith, of the ship Ann, of New-York, the sum of fourteen hundred guineas, on the event of his charterer, Mr. James Neville, not loading his ship at Riga, and according to the terms of the charter-party made between them.” The declaration then averred, that it was well known to the defendant and to Neville, that the Ann belonged to the plaintiffs ; that said contract was made with said Smith, as master of their ship, for their benefit, and in the regular course of employment of said ship ; and that the defendant, by said contract, promised to guaranty to them, through their said captain, and to pay to them said sum of fourteen hundred guineas, or their value, in the event of said
      Neville’s not loading said ship according to said charter-party. The declaration then enumerated, and averred performance of, by Smith, the several acts required of him by the charter-party, and alleged, that Neville, and his corRespondents at Riga, wholly neglected and refused to furnish said cargo, or any part thereof; of all which the defendant had received due notice.

      The public seal of a sovereign state,affixed toa writing purporting to be a judicial proceeding, is, of itself, the highest evidence of authenticity and is taken notice of judicially, by the courts of justice in other states.
    Nor is it necessary, in order to make a document thus authenticated in a foreign nation, a legal exemplification in our courts, that it should be accompanied with a certificate of its being a copy of an original record, under the official signature of an officer of the court, whose judgment is ex - emplified.
    To an action of assvmpdt against the owner of a ship, on a guaranty given by him to S., the plaintiffs’ agent, for the performance of certain stipulations on the part of 5V*. in a charter-party, the defendant pleaded, that the plaintiff, by his agent S, brought an action on the charter-party against 5V. for non-performance, before a foreign court of competent jurisdiction, which was decided in 5V.’s favour. To prove his plea, the defendant produced the record of a judgment in an action brought by I). as the agent of S, against 5V. for non-performance of the charter-party in question, which was decided in 5V.’s favour Held, that this was proper and sufficient evidence to support the plea.
    A foreign judgment, when used bv way of d/f-nee, is ns conclusive, to every intent, as a domestic judgment.

      The defendant pleaded, 1st, The general issue. Sndly, That although he executed the written guaranty, &c. yet afterwards, on the 17th of April, 1812, at Copenhagen, in the liingdorn of Denmark, the plaintiffs, by their said agent, Hezekiah Smith, instituted and prosecuted to judgment, a suit against the said Neville, in the sea court, so called, demanding of him the sum of 1400 guineas, for alleged violations of his several engagements and obligations, contained in said charter-party; and that by the judgment of said court, said Neville was acquitted, and decreed not to be liable on said charter-party, or any part thereof; that upon the appeal of the plaintiffs, by their said agent, to the supreme court of Copenhagen, the judgment of the sea court was affirmed ; that the defendant was only surety of said Neville’s ability and good faith, in the particulars stated in said writing by him executed ; and that by said judgment, the liability of said Neville, in the particulars for which the defendant was surety, was expressly decided by said court.
    The replication traversed the plea in bar, upon which issue was joined.
    The cause was tried at New-Lonion, September term, 1816, before Edmond, Brainard and Gould, Js. Several questions of law arose at the trial, under the first issue, which were reserved, but were not, eventually, decided by this court.
    To support the plea in bar, the defendant offered in evidence the record of a judgment, or decree, of the supreme court of Copenhagen, reciting the proceedings and sentence of the sea court. From the recital, it appeared, that the suit in the sea court', was in the name of “ George Dickenson, master of a vessel, citizen of the United States of America, and agent of capt. Hezekiah Smith of Chatham in the said Stales, against James Neville, (by the name of Henry Myer'). The proceedings of the sea court stated Smith’s claim of 1400 guineas from Neville, for alleged violations of the charter-party, the principal stipulations of which were recited : and noticed the allegations made, and referred to the proofs adduced, by the parties. After declaring, that capt. Smith had not, on his part, complied with the stipulations of the charter-party, the court proceeds to say, that e‘ the defect in the accomplishment of the charter-party on the side of the captain, must, in our judgment, have rendered him incapable of claiming the accomplishment thereof on the side of the defendant.” Whereupon it is “ decreed, that the defendant shall be acquitted of capt. George Dickenson, agent of capt. Hezekiah Smith, his prosecution in this case.” After reciting the proceedings and decree of the sea court, and after stating that the parties were again heard, the supreme court of Copenhagen proceeds to affirm the decree of the sea court. The record was authenticated by the great seal of Denmark. There was no certificate that the decree, See. offered in evidence, was a copy of record, but below the seal was the signature Colbiornsen, without any addition of his official character. The translator of the record, deposed, that he knew the seal attached to the original to he the royal seal of the kingdom of Denmark. J. M. Forbes, Esq. agent of the United States: at Copenhagen, Certified, that the signature at the foot of the record was that of the counsellor of confer, enees, Colbiornsen, chief judge of the highest court. To the admission of this record tito plaintiffs objected, on several grounds ; but the court overruled such objections, and permitted the record to be read in evidence to the jury. The court also instructed the jury, that if they should find lite document shewn in evidence of the proceedings in the court of Denmark to be genuine, — and it was to be presumed to h( genuine until the contrary w as shewn, — their verdict upon the second issue should he for the defendant. The jury having found a. verdict. for the defendant on both issues, the plaintiffs moved for a new trial : and the questions arising on such motion were reserved for the consideration and advice of the nine J udges.
    The case was very fully discussed, by Daggett and Cleave-land, in support of the motion : and hv Law and Rrainard» contra.
    The former Contended, among other points, which, from the decision of the court, it has become unnecessary to state.

      i, That the writing given in evidence as the record ot a CHurt jn Denmark, was not properly authenticated as a genuine document, Moisés v, Thornton, 8 Term Rep. 303-Henry v. Mey, 3 East 221.
    2. That admitting the document to be genuine, yet it was not a legal exemplification. It does not purport to be a copy of an original record ; nor does it appear from extrinsic evidence, that it was so. 2 Crunch 237, 8. 8 Term Rep. 30r, 8. it is signed by an individual, without any addition to shew that he was an officer of the court, or if he was, that he was then acting in his official capacity. Nor does it appear, by whom, or by what authority, the sea! was affixed. 3. That the record, if duly authenticated, did not prove the plea; and therefore, the charge was wrong. First, it was not between the same parties. Peake's Ev. 33. 4 Day’s Ca. 432, Secondly, it did not decide the point in issue in this case. Manny v. Harris, 2 Johns. Rep. 24, 30, Sintze-nick v. Lucas, 1 Esp. Rep. 44, Thirdly, being a foreign judgment, it was not conclusive.

    On the other side, it was insisted, I, That the record oi the Danish court being authenticated under the national seal, was proved by the highest evidence which could be given. The affixing of a national seal to an instrument, is symbolical language, importing absolute verity, which the courts of othei nations judicially take notice of, and give credit to. Swift’s Ev. 8. Peake’s Ev. 73. n. (⅞.) 4 Dali. 416.
    2. That the charge was right, because the parties were virtually the same; the same facts which arc now in con • troversy, were the basis of the former decision ; and as that decision w;as in favour of the defendant, it furnishes a com plcte defence in this suit. 2 Mac Mai. Ev. 427, 8, Swift’s Ev. 9, 10. Calhoun’s lessee v. Dunning, 4 Dali. 120, 1 2 //. Black. 410.
   Swift, Cb. 3.

In this action, the plaintiffs allege, that Hezekiah Smith, their agent, made a contract of charter-party with Neville, which was guaranteed by the defendant, The defendant has pleaded non assumpsit, ami also, that the plaintiffs, by their agent, said Smith, brought an action on the charter-party, against Neville, for the non-perforniancr. of it, before a court of competent jurisdiction, in the kingdom of Denmark, which was decided against them. Tiie defendant produced in evidence, the record of the judgment j which the superior court admitted, and decided to be sufficient evidence to prove the issue.

It is contended for the plaintiffs, that this record ought not to have been admitted in evidence, because it is not duly authenticated, and does not appear to have been certified by any officer having power to do it. But this court does not know the form of making up, attesting or certifying their record. If it appear to he a judicial proceeding under the great seal, it is to be presumed, that all the formalities required by their law, have been complied with. This appears to he the record of a judgment rendered in a court of the kingdom of Denmark, under the great seal of the king. This seal proves itself, and the court is bound to take judicial notice of it. This is all the evidence required by our law to prove a foreign judgment, and the record was properly admitted.

It has been urged, that this record does not prove that Smith was the agent of the plaintiffs, and Dickenson the agent of Smith, which was a material part of the plea, and was traversed. But the plaintiffs have alleged in their declaration, that Smith was their agent, in making the contract of charter-party w ith Neville, w hich rendered it unnecessary to prove it. Nor was it requisite to prove a power of agency from Smith to Dickenson, to prosecute the suit. The record of the process and judgment, in a suit in the name oí Smith, the acknowledged agent of the plaintiffs, by his agent Dick-enson, was sufficient; and it was no more necessary to prove a power of agency from Smith to Dickenson, than it would be to prove a lawful power to the attorney of record, in every case, where the proceedings may be given in evidence.

It is further said, that from the record of the court in Denmark, it does not appear that the action was on the charter-party, for the guaranty of which this action is brought; and therefore, the record did not prove the facts in issue. But on inspecting the record, it appears that the action in the court in Denmark was brought by Smith, in his own name, who had lawful power to do it, on this charter-party, against Neville ; and it was decided, on the merits of the case, that Smith had no right to recover ; of course, the record of that judgment proved the facts in issue, and the charge of the court was correct.

As the verdict was right on the second plea, it is unncces sary to examine the questions arising under the first plea.

1 would not advise a new trial.

Goum, J.

If the. verdict is right, upon either of the issues, the motion cannot prevail: and, as the court is unanimous in favour of the defendant, npon the second plea ; there is no necessity of considering the questions, raised under the first. The only points, then, which require consideration, arc those, which arise npon the admissibility of the record of the Danish court, and upon the directions, given to the jury, as to the effect of it.

It is first, objected, that the record in question is not duly authenticated, — i. e. not accompanied with sufficient evidence of its being genuine. But, in the proof of foreign documents, there must, from the nature and necessity of the case, be some ultimate limit, beyond which no solemnity of authentication can be required. And the public national seal of a kingdom, or sovereign state, is, by the common consent, and usage of civilized communities, the highest evidence, and the most solemn sanction, of authenticity, in relation to proceedings, cither diplomatic or judicial, that is known in the intercourse of nations ; and as such, is taken notice of, judicially, by courts of justice in other states. Anon. 9 Mod. 66. The United States v. Johns, 4 Dall. 416. Peake’s Ev. 73. notis. Church v. Hubbart, 2 Cranch, 187. The seals of foreign municipal courts, on the contrary, must be proved by extrinsic evidence. Gilb. L. Ev. 20. Henry v. Adey, 3 East, 221. Collins v. Lord Mathew, 5 East, 473, Delajield v. Hand, 3 Johns. Rep. 310. Peake’s Ev. 72, 3. In the present case, the proof of the genuineness of the record, given in evidence, is, in point of solemnity, the highest possible, the national seal of the kingdom of Denmark. And, as if tin-production of the seal were not, of itself, sufficient; its genuineness has been proved by evidence aliunde, to which there was no objection.

It is still objected, that there is no certificate of the document's being a copy of any' original; and that there is no official signature of any clerk, or prothonotary. There can «be no need of either. We surely cannot require, that the mere artificial forms of certifying, or exemplifying, records in foreign courts, should correspond, precisely, with our own. Upon that principle, no foreign record could, perhaps, ever he proved in our courts. But what seems decisive of the question, is, that such a certificate, and signature, if supplied, would not prove the seal, nor conduce to prove it. ’> East, 221. The seal, it is true, would prove them ; but it proves, of itself, and as well without, as with, them, all that is substantially necessary — the genuineness of the record.

But there is no evidence, it is said, that the seal wTas affixed by a proper officer. Assuming the seal to be genuine, that fact must, of course, be presumed, unless the contrary is shown. For any higher evidence of the fact, appearing upon the face of the record, than the seal itself imports, is impossible : ami to require extrinsic evidence of it, would be to subvert the rule itself, that a national seal is the highest proof of authenticity.

But there is a variance, it is said, between the Danish record, and the description of it, in the plea : inasmuch as the plea alleges, that the plaintiffs, by their agent Smith, commenced the suit against Neville; whereas the record itself purports, that Smith, as principal, brought the suit in his own name, by his agent Dickenson. Now, ship-masters, like many other mercantile agents, may maintain suits, in their own names, upon charter-parties, and many other contracts entered into by themselves, in behalf of their ow-ners. In such suits, the agent is always, nominally, the principal: though, actually, the mere representative of his employers. Such was the case, in the suit, instituted by Smith, in Denmark. For the purpose of that action, as claiming against Neville, the then defendant, and as between himself, and Dickenson, his attorney, — he was principal: though, as to the present plaintiffs, (as appears by their own showing, and even by ¡heir declaration, taken in connexion with the Danish record,) he was only an agent. A formal, unessential diversity, in the description, given to Smith, in the two suits, can be of no importance, if it appears, as in this case it clearly does, that he brought the action in Denmark, as the representative of the plaintiffs, and that Dickenson was merely his attorney. In this view of the case, the judgment in favour of Neville, was, in effect, a judgment against the plaintiffs.

The objection, tli¡it the record of the Banish court was irrelevant, as not embracing the same original questions, as present; suit involves, appears equally unfounded. For the final judgment, in the supreme court of Denmark, is most general, — comprehending every question of merits that has arisen, or can, probably, arise, upon the charter-party.

The Banish record, then, was clearly admissible : and if so, I am at a loss to discover how the direction to the jury could have been substantially otherwise than it was ; except, indeed, that, in relation to the genuineness of the seal, it wras somewhat more qualified in favour of the plaintiffs, than it might have been. There seems to be no ground of objection on their part. For the record goes, directly, to support the plea ; and it is an established rule, that a foreign judgment, when used by way of defence, is as conclusive, to every intent, as those of our own courts. The question, whether the Banish judgment is to be considered as res inter alios, and therefore as not affecting the present suit, does not, according to the view I have now taken of the case, arise upon this motion. For if, as I have attempted to show, the suit in Denmark was virtually between the plaintiffs and Neville, so as to support the averment of that fact in the special plea $ the question, whether it is conclusive between the plaintiffs, and Pitcairn, the present defendant, is not involved in the direction of the court, nor affected by the verdict. That point, (if it be one.) remains open upon the face of the pleadings, and can be made only by motion in arrest of judgment, or writ of error.

The other Judges concurred, except Goddard, J. who declined acting, having been of counsel in the cause.

New trial not to be granted.