Serrell v. Rothstein

49 N.J. Eq. 385 | New York Court of Chancery | 1892

The Chancellor.

The defendant admits that she knew when the interest was payable, and, also, that the extent of grace allowed by the contract was thirty days from that time. The allegations of the answer exhibit that it was her design to defer payment to the utmost limit of the grace, and that, in relying upon her son’s calculation, she waited one month after the interest became due, instead of thirty days. Her deliberate entry upon a scheme of delay, under sanction of the provisions of her contract, warned her to see to it that her calculations were without error. She sought to take advantage of the letter of a contract which reckoned time not by the calendar month, but by days, a lapsing of time as plainly apparent to her as to any other person, whatever his or her language or-education may have been. It is not necessary to consult a calendar to ascertain when a day commences and ends, or when thirty days pass. As each day of the thirty allowed the defendant went by, she must have been aware of its passage and have realized that it took one from the thirty. Her miscalculation was the result of her carelessness, which cannot be regarded in equity as a mistake. Voorhis v. Murphy, 11 C. E. Gr. 434. She and her agent, under the circumstances, were bound, at least, to such reasonable diligence as would have ascertained the limit to which she had determined to go.

That limit was reached on the 28th day of August. The '29th of July, the day upon which the interest became due and payable, is not to be counted. The interest was payable at any 'time during that day, and was not due until the day expired at midnight. Upon its expiration at midnight a new day entered, and, with its entry, the. interest became unpaid and the first of the thirty days commenced. Two of them expired in July, and, after twenty-eight more of them had expired in August, the thirty days of grace, given by the contract, were at an end. Thorne v. Mosher, 5 C. E. Gr. 257; In re Evans’s Will, 2 Stew. Eq. 571; McCulloch v. Hopper, 18 Vr. 189. The allegations of the answer objected to do not state a defence, and the complainant should not be put to the expense of attending upon their proof.

I will make the order moved for.