6 Barb. 258 | N.Y. Sup. Ct. | 1849
The plaintiff sought to recover in ejectment a farm, which he had sold to the defendant by contract, on the ground that the latter had failed to pay, when due, a small balance of the purchase price of the premises. The justice who held the circuit granted a nonsuit at the trial, which the plaintiff now moves to set aside. And two questions arise upon this motion.
First. Whether the annual pay day, under the contract, fell on the 24th of December or the first of May. The phraseology of the duplicates of the contract differed somewhat in one particular. If that difference is material, then, we think, in an action against the defendant for a forfeiture of his contract, by reason of its non-performance, we should follow that copy which was in the defendant’s hands and by which he was governed in making his payments. Both copies bear date on the 24th of December, 1841; and the clause providing for the payment of the purchase price and interest is in the following words: “ One hundred dollars on the date hereof, one hundred dollars by the first of May next, and the residue to be paid in annual payments of one hundred dollars each, with interest on the whole sum unpaid from the date hereof.” Now the plaintiff contends that the “ residue” is payable in annual payments from the date, while the defendant insists that the annual payments should be computed from the first of May. And this we think the fair construction of the contract. Throwing out of our consideration the clause providing for the payment of interest, (which on a careful reading appears to have been inserted to show when the interest should begin to run, and not to fix the periodical times of payment) there is nothing in the language used to indicate that the periodical payments were to date from the 24th of December rather than the first of May. Indeed the first of May is the last antecedent to which those payments would most naturally refer. Again; in the purchase of farms, possession is usually taken in the spring, and the payments are made to fall due then. It is also true that the first payment was paid down, and strictly was not a future payment secured by the contract. The execution of the agreement and the pay
Secondly. The remaining question is, whether the judge erred in holding the tender, on the 1st of May at the house of the plaintiff, a good tender. A tender, at the house, of moneys due upon a mortgage, was held good, in a case where an offer was made to the mortgagee, several days before the payment fell due, and she then declined to receive it, but said that she should be back from a place which she named, about 40 miles distant, before the day of payment. She did not in fact return by the day, and the tender at the house was adjudged valid. This case, (Smith v. Smith,) is reported in the 25th Wendell, 405, and a note of it is also found in 2 Hill, 351, where it is said that Judges Bronson and Cowen agreed to the decision under the particular circumstances of that case; though, as a general rule, the tender should be to the person. We think, if the tender was good in that case it is in this. Here, an ineffectual attempt was made to find the plaintiff, on the last day of April, his house then being closed. On the first of May the defendant’s agent got admitted into the house, but was told that the plaintiff had gone east. From the state of the negotiations between the parties, and from what the plaintiff knew of the defendant’s claim, as to the true payday under the contract, it cannot be doubted that the plaintiff is to be chargeable with no
For these reasons we are of the opinion that neither law nor justice requires the nonsuit to be set aside.
New trial denied.