262 Mass. 39 | Mass. | 1928
This is an action of contract to recover damages for breach of an alleged agreement for the sale of
The plaintiff contends in substance that the receipt by the defendant of the check for $400 operated as payment. “In order to have that effect it must appear either expressly or impliedly that the check was accepted in payment. . . . The mere sending of the check and the receipt of it by the” defendant ‘ ‘ could not render it effectual as a payment. Taylor v. Wilson, 11 Met. 44.” Illustrated Card & Novelty Co. v. Dolan, 208 Mass. 53, 54. Ansin v. Mutual Life Ins. Co. of New York, 241 Mass. 107, 111, and cases there collected. The immediate return of the check by the defendant shows that it was not accepted in payment.
The sixtieth day from August 9, 1922, on which the $400 was to be paid, fell on October 8, which was a Sunday. Therefore, under G. L. c. 4, § 9, the payment might be made on October 9. This is an action at law. Hence the plaintiff suing for breach of the contract by the defendant must prove that he paid the $400 on the date specified by the contract. Time of performance is of the essence of a contract
The omission of the defendant to state grounds for the return of the check by her to the plaintiff, and the statements in her letter, do not bar her from relying upon these defences. Moss v. Old Colony Trust Co. 246 Mass. 139,150, and cases there collected.
Exceptions overruled.