Sanders v. Ochiltree

5 Port. 73 | Ala. | 1837

HOPKINS, C. J.

The question presented by the assignment of error in this case is, whether a note for the payment of money which was executed on a Saturday, and payable one day after date, was due on the day of its date, or on the next Monday afterward. The note is not one, upon which days of grace are allowed. Neither party intended that the money should be paid on the day the note was made. The promise made by one party and accepted by the other, was to be performed the next day, and that day was a Sunday, on which it was not lawful to comply with the promise, or to accept the fulfilment of it. To decide that the money was due on the day of the date of the note, would be to allow an effect to the contract against the clear intention of the parties.

We are of opinion therefore, that the day for performance, was the first one after that of the date of the note, upon which the money could have been paid, without a violation of the intention of the parties, or of the law of the land. That day was the next Monday after the date of the note.

In the case of Avery vs Stewart,^* a majority the Court, determined that a note, payable within sixty days from the date, was due on the sixty-first day after the date of the note, because the sixtieth day was a Sunday. We concur in the opinion of the minority of the Court in that case.

Where a contract is to be performed within or at a stipulated time, or a specified number of days after date, and the day fixed for performance, is not the next day after the date and happens to he a Sunday, the contract ought to he performed the day before. This qualification of the rule, applied to this case, contains the principle applicable to negotiable instruments, and by the admission of it, the operation of the law will be uniform.

When the last of the three days of grace, allowed on negotiable instruments, is one on which it is uiir lawful to demand or make a payment, the day for performance is the second day of grace.- Where •there is any lawful day for performance, contracts .ought to be performed within the time limited.

As the action in this case, was commenced on the day the note was due, it was brought before the pause of action "accrued.

•The judgment is affirmed.

* 2 Conn. R. 69.