Thorne v. Mosher

| New York Court of Chancery | Oct 15, 1869

The Changellob.'

The first question is, whether the offer was made in time. And that depends upon the question whether the first day, and the day on which the interest became due, shall both be computed as part of the fifteen days. The natural and usual meaning of the words would reject the first day. No one would consider that any act to be done in one day after a stated event, should be done on the same day, but on the day after. The law disregards fractions of a day, and if the day begins and ends at twelve at midnight, any act done within the twenty-foür hours succeeding midnight, is done on the next day, although done in one hour after an act referred to in the preceding twenty-four hours.

But the decided cases, both in England and this country, differ very much as to the rule in such case. Most of the law courts in this country, including the Supreme Court of this state, have settled that when any matter of proceeding or practice is required by statute or rule of court to be within a certain number of days, the first day, or terminus a quo, is excluded. And I find no case among the number of contradicting cases which I have examined, that holds, in case of forfeiture, that the day of the event after which, in a specified number of days, the forfeiture occurs, will be included. And in applying the doctrine to be deduced from conflicting cases to a quasi forfeiture, as this is, a court of equity should lean against the construction which favors forfeiture.. I am of opinion that the offer was made in time.

This offer was neither payment nor tender, but the refusal was an excuse for not making the tender. In this case, the money was in the defendant’s hands at the making of the offer, and could have been seen by the complainant, but was not. It would have been taken entirely out of the purse and offered to her, had she not positively refused to take it. This is a sufficient excuse for not making the actual tender. A party is not allowed to take advantage of an act done, or the omission to do it, where such act or omission was designedly caused by himself.

In this case, it would be most inequitable to hold that the principal of this bond is due, when the offer of payment wras deliberately refused, and that refusal prevented the defendant from proceeding further. No woman, of good common sense, would think it necessary to go through the form of stretching out a roll of bills to another, who had just announced her determination not to receive them. This offer must he considered as equivalent to a tender to prevent the principal of this mortgage from becoming due.