| Ill. | Jun 15, 1855
The defense set up to this action of ejectment is a contract for the purchase of the premises by the defendant, from the assignor of the plaintiff below, under which it is claimed that Petrie took possession of the premises, and now rightfully holds them. The principal question in the case is, whether the purchaser performed, on his part, so as to entitle him to the benefits of the contract and "to retain possession under it, or whether he has forfeited the benefits of the contract by his non-performance. The principal evidence on this point is found in the testimony of Eollansbee.
After proving the agreement by him, the defendant proved a notice which he received from Dexter, the vendor, and Sloan, a subsequent vendee or assignee of the premises, requiring the defendant below to pay the balance then due on the contract, to Eollansbee, at his office in Chicago, on or before ten o’clock on the ninth day of July, 1851, and in default of such payment the contract woidd be declared forfeited. On the evening of the 8th of July, 1851, the defendant called on Eollansbee and advised him that he had received such a notice, and that he should pay him the money according thereto. Eollansbee answered him that he had no authority to receive the money, and should not receive it if tendered; that he had received notice from Dexter not to receive any money on the contract on his account, as he had sold the premises to Sloan. This notice was brought to the witness by Sloan at the time he bought the premises of Dexter. Sloan never told him not to receive money on the contract. The defendant told the witness the contents of the notice which he had received from Dexter and Sloan, to pay the money to the witness the next day. The witness, in the month of April previous, had called on the defendant for money due on the contract, which he refused to pay, and said he should not pay any more money on the contract.
On the 9th of July, Petrie called on the witness about two hours after the time appointed for the payment of the money, and said he had been there before to pay the money, but he was not in. The witness then told him he would receive the money, and he meant what he said, to which the defendant replied that it was too late, and that he could not have it.
The testimony of Richmond shows that Richmond & Co. loaned Petrie their check on Geo. Smith & Co. for the purpose of making the tender. With this check he went to Eollansbee’s store to make the tender, about ten o’clock on the morning of the ninth of July; that Eollansbee was not in. They went away and returned some time after, and that he was still absent, when Petrie returned the check to Richmond & Co., and it was destroyed ; that Richmond & Co.’s check was good for that amount of currency, which was about one per cent, below par, in specie.
The case, in fact, turns upon the sufficiency of this tender, and we are very clearly of opinion that it was not sufficient, or if originally sufficient, it was not kept good, and the benefit which might have been derived from it was lost, by refusing to pay the money to Follansbe when he offered to take it. We are not aware of any case which has decided that a check on a banker, which is only good for depreciated currency which is one per cent, below par, is a good tender at a place designated, when the person to receive it is not present, and has no opportunity to object to the tender, on that account, nor are we, by any means, prepared to lay down such a rule. There are many cases which hold that a tender in bank bills which are at par, is good, if the person to whom the tender is made does not object to the tender on that account. But that is upon the principle of an implied waiver of the objection, by not relying upon it. But when the party is not present, and has no opportunity to urge the objection, he cannot be presumed to have waived it by his silence. But admitting the tender was origi-' nally sufficient, the money or check thereby became the property of the plaintiff, and the defendant was bound to retain it for him, and hold or place it in a safe place, whenever called for by him. Within two hours after the tender was made, and when the defendant first informed the agent that he had tendered the money, he offered to receive it, when the defendant absolutely refused to pay it, but said it was too late. This rendered his case no better than it would have been if no tender'had ever been made. I would not be understood as saying that the defendant was bound to have the money in his pocket and to have produced it on the instant, for, under the circumstances, he was undoubtedly entitled to a reasonable time to go and get it where he might have deposited it. But this he did not offer to do, but absolutely refused to pay it at all, saying it was then too late. If it was too late then, it is too late now, and must ever be too late. If he was not entitled to it then, he never can be entitled to it, but must lose it. It must be remembered that we are in a court of law, deciding upon legal rights, with no discretionary powers to waive the element of time as imimportant, even if, under this contract, that could be done by a court of equity. We cannot order the money now to be paid or brought into court, and upon seeing that done, allow the defendant to retain the benefit of his contract. This is not a bill . for the specific performance of the contract, where the rigorous principles of the law may be modified by the discretion of the court, but this is an action of ejectment, where legal rights can be alone considered. We have no doubt that the verdict was wrong, and a new trial should be granted. The judgment must be reversed and thé case remanded.
Judgment reversed.