| Iowa | Jun 13, 1871
On the 12th of June, 1866, Charles ~W. Rogers entered into a written contract, to convey to defendants and Andrew Labounty certain lands in Floyd county, conditioned upon the payment of five promissory notes for $256 each, the first to be paid June 12, 1869, and one upon the 12th of June of each succeeding year, until all were paid, together with interest, in the language of the instrument, “ at ten per cent per annum each year, commencing on the 12th day of June, 1867.” The contract also stipulates that defendants and Labounty “ shall pay the taxes hereafter to become due on the said premises, each year.” The instrument closes with this condition: “A failure to perform any of the stipulations herein, on the part of the parties of the second part (the defendants), this agreement shall be null and void, time being, of the essence of the contract.” Labounty sold and transferred all his interest in the premises to plaintiff, and afterward, Rogers conveyed the lands to plaintiff, subject to said contract.”
April 15, 1869, plaintiff filed his petition, alleging the breach of the contract by defendants, and asking that it be set aside and canceled and be declared void, on account of the failure of defendants to pay the interest upon the notes and the taxes falling due upon the land. By amended petition, plaintiff admits the payment of certain amounts at different times, which are less than the sums then due, and offers to repay the same and give up or cancel defendants’ notes. By a supplemental petition, filed November 15, 1869, he alleges that defendants failed to pay the note and interest falling due June 12, 1869, and repeats the prayer of the original bill.
Defendants in their answer deny their failure to make the several payments of interest and taxes, and in their
Plaintiff claims that the contract is avoided by the failure of the defendants to pay, (1) the taxes as the same fell due; (2) the interest due on the 12th day of June, 1868; (3) the note and interest due June 12, 1869, there being thus, as he insists, three distinct breaches of the contract that work a forfeiture thereof. We will state briefly our conclusions drawn from the evidence upon these points.
I. It is admitted that the taxes for the .year 1868 were not paid by defendants before they became delinquent, but after that time were paid by plaintiff. It is not disputed that defendants tendered, soon after, to plaintiff the amount he had paid with interest. While the contract very explicitly provides that “time is the essence of the contract,” yet it entirely fails to fix the 'time when the tax is all to be paid. It simply binds the defendants to pay the taxes that may become due each year. Now it cannot be claimed that defendants are bound to pay the taxes before they become delinquent. As there is no time fixed by the terms of the instrument for their payment, defendants’ contract will be performed by payment at any time before or after delinquency. Plaintiff relies upon the strict letter of the contract; he must be content with enforcing conditions that are expressed. He cannot be permitted to claim the forfeiture unless the contract so provides.
II. The evidence quite satisfactorily establishes the payment of the interest falling due June 12, 1868. The defendants both testify to the fact, and are corroborated
III. The amount of the note and interest falling due on the 12th day of June, 1869, was tendered to plaintiff by the agent of defendants. The only question raised upon this .tender is, that it was not made at a sufficiently early hour of .the day. It is not claimed that it was not made upon the proper.day, but plaintiff insists that- it was made too late in the day. The evidence upon this point is conflicting. The agent of defendants making the tender testifies that it was made in the afternoon, before sundown. Plaintiff and his witnesses fix the time after sundown, and at about 8 o’clock. Admitting that the tender was made at the last-named hour, wre think it was in time. A note is not dishonored until the close of business hours on the day of its maturity, where, by usage, business is limited to a particular part of the day. When no such usage exists, dishonor will not fall upon it, until the close of the day. 1 Pars, on Notes and Bills, 262. It is not shown that at the place where the tender was made any custom fixing business hours existed. We are not prepared to hold that, in the absence of usage, a note would be dishonored at a half an hour after sundown, the time when the tender was made in this case. We presume that the whole of the day usually devoted to business would be allowed the maker for the payment of his note. We well know that it is usual, except in cities and the larger towns, to transact business at late hours of the day, and even in the night. If a note would not be fully dishonored at the hour the tender was made in this case, it is quite clear the tender was in time. But, without resting oúr conclusions upon the principles above stated, we are -of the opinion that a tender of payment, in
The views above expressed are supported by Edwards on Bills and Notes, 496-499.
The decree of the district court is
Affirmed.