Buffum v. Buffum

11 N.H. 451 | Superior Court of New Hampshire | 1841

Parker, O. J.

The money was tendered to the defendant at his house on the 8th of April, 1840. It has been said that this is not alleged in the bill. But the bill alleges that it was tendered on the 14th, and within one year from the execution of the bond ; and the last allegation embraces the tender on the 8th. The proof therefore is sufficient. Greeley's Eq. Evid. 2, 161, 169.

There was no condition to this tender. The plaintiff requested a deed, and that the note should be given up. This he might well do. The defendant did not offer to take the money, but said he was not bound to receive it. This must be regarded as an unconditional tender, if the plaintiff had the right to tender at that time. 5 Pick. R. 270, Saunders vs. Frost; Wendell vs. New Hampshire Bank, 9 N. H. Rep. 413.

The note has not been put into the case, and its precise terms are not stated. Nor is it important. No case has been cited in the argument, and w7e have found none giving a construction to a note where the promise is to pay a sum of money “ within ” a certain time. We are inclined to believe that the maker of such a note may tender the money to the holder at any reasonable time within the period specified, although the holder cannot enforce the payment until the expiration of the time. The time of payment depends entirely upon the agreement of the parties. If the promise was to deliver specific articles, or to perform any other act than the payment of money, “ within” a certain period, we think the party would have the right to tender the performance at any reasonable period, although the other party could not demand it till the last day; and no very sound reason occurs to us why the same rule should not apply to a contract to pay money, giving the maker an option to pay if he finds the holder at the place, in case place be specified. It is true, that there is but a slight difference in phraseology between such a note and one payable “ in” a certain time j and perhaps commercial usage may have construed the latter as an engagement to pay at the expiration of the period, so that the party is not at liberty to tender payment before that time.

By the law of this state, grace is allowed on promissory notes. Upon a note payable at one year from date, no suit can be commenced until the expiration of the days of grace. But it is supposed that the maker may tender at the expiration of the year, or at any time within the days of grace. If he may, there is no objection, in point of principle, to a note by which the maker may tender the money before the holder can make a presentment and demand. Clearly the parties may so make their contract. 3 N. H. Rep. 333, Eastman vs. Fifield.

But however this may be, and supposing that the note in this case was payable at the expiration of the year, that will make no difference. The condition of the bond is, that if the obligee, George Buffum, his heirs, &c., “ shall first, within one year from the date, pay or cause to be paid” to to the obligor, &.C., the sum of $332, and interest, “agreeable to his promissory note of this date,” the obligor is to give a deed, &c. If the note was payable at the expiration of the year, this latter clause cannot be restrictive of the former. It could have been intended merely as a reference to the note, to show that it was the same sum of money. It is not to be read, “ if the said George shall first, within the year, pay at the expiration of the year.”

The condition of the bond, then, is, that if the plaintiff shall pay the money within the year, the defendant shall re-convey the land.

If a promise to pay within a year, in a promissory note, may, by some commercial usage, be construed to be a promise to pay at the expiration of the year, there is no such usage applicable to the condition of an obligation. Where the condition is to do an act within a specified time, the party who is to perform it may save a forfeiture by a performance or tender, at any reasonable time within the period, if the parties meet at the place ; and he need not wait until the expiration of the time limited, within which the act is to be done. Cro. Eliz. 73, Allen vs. Andrews; Ditto 14, Hawley vs. Simpson; Co. Litt. 211, a.; Bac. Abr., Conditions, P. 3; 5 Dane’s Abr. 499, ch. 170, art. 7. Asimilar principle applies in a case where the money is payable on a day certain. There the time of demand is said to be such a convenient time before sunset, as that the money may be counted. But if the parties meet together any time in the day, a tender will save the condition. Co. Litt. 202, a.; 5 Coke 115, Wade’s Case.

We are of opinion that the principle is applicable to this case. The plaintiff, by the terms of the bond, had a right to pay the money within the year, and thereby entitle himself to a re-conveyance. And this gave him a right to tender it to the defendant, at his house, at any reasonable time within the year, for that purpose. If the note was not payable until the expiration of the year, the defendant was not bound to receive the money until that period, and in a suit upon it would be entitled to interest until that time ; but a tender before the expiration of the year, if the money was kept in readiness, saved the rights of the plaintiff, and required the defendant to re-convey according to the terms of the bond.

If the note was payable only at the expiration of the year, perhaps a further tender, at the day, might have been necessary, to furnish a defence to an action upon the note itself. It is not necessary to settle how that may be.

There is evidence that the defendant demanded the money subsequent to the tender, and subsequent to the filing of the bill and answer ; but this cannot avail him in the defence of this case. If, subsequent to the tender, and before the filing of the bill, the defendant had demanded the money, and the plaintiff had refused to deliver it, the refusal might have deprived him of the benefit of the tender. But the demand for the money, in this case, was long after these proceedings were commenced; and the circumstances show very clearly that it was not made with the purpose of taking the money, and releasing the land. The money was then in the hands of a third person. Within three days it was procured, and offered to the defendant, and he refused it.

The case shows a very gross attempt to defraud the plaintiff out of his farm; and the penal sum of the obligation, which was only the amount of the money loaned, was doubtless inserted with that view, in the first instance. If we could not relieve the plaintiff on this bill, it is by no means clear that we ought not, upon a bill for that purpose, to decree a re-conveyance on the ground of fraud.

The plaintiff has not set forth in his bill, as he should have done, his readiness to pay the money, nor does it ap-pearJhat he has brought it into court. But no exception hafneen taken on this point. The evidence shows his readiness to pay, and we can relieve him, in this particular, by permitting him now to bring in the money. 6 N. H. Rep. 158, Bailey vs. Metcalf. When that is done, there must be a decree that the defendant re-convey the land, and pay the costs.