Judd v. Ensign , 6 Barb. 258 ( 1849 )

By the Court, Gridley, J.

The plaintiff sought to recover in ejectment a farm, which he had sold to the defendant by contract, on the ground that the latter had failed to pay, when due, a small balance of the purchase price of the premises. The justice who held the circuit granted a nonsuit at the trial, which the plaintiff now moves to set aside. And two questions arise upon this motion.

First. Whether the annual pay day, under the contract, fell on the 24th of December or the first of May. The phraseology of the duplicates of the contract differed somewhat in one particular. If that difference is material, then, we think, in an action against the defendant for a forfeiture of his contract, by reason of its non-performance, we should follow that copy which was in the defendant’s hands and by which he was governed in making his payments. Both copies bear date on the 24th of December, 1841; and the clause providing for the payment of the purchase price and interest is in the following words: “ One hundred dollars on the date hereof, one hundred dollars by the first of May next, and the residue to be paid in annual payments of one hundred dollars each, with interest on the whole sum unpaid from the date hereof.” Now the plaintiff contends that the “ residue” is payable in annual payments from the date, while the defendant insists that the annual payments should be computed from the first of May. And this we think the fair construction of the contract. Throwing out of our consideration the clause providing for the payment of interest, (which on a careful reading appears to have been inserted to show when the interest should begin to run, and not to fix the periodical times of payment) there is nothing in the language used to indicate that the periodical payments were to date from the 24th of December rather than the first of May. Indeed the first of May is the last antecedent to which those payments would most naturally refer. Again; in the purchase of farms, possession is usually taken in the spring, and the payments are made to fall due then. It is also true that the first payment was paid down, and strictly was not a future payment secured by the contract. The execution of the agreement and the payment of the first hundred dollars were contemporaneous acts. We can see no reason why a payment should have been required to be made in Hay at all, if all the rest of the purchase money was to be paid in annual installments from the date of the agreement. It seems more reasonable to suppose that all the installments were to fall due on the first of May, except what was paid down, which was in no sense a future installment. We are corroborated in this construction of the agreement by the practical interpretation given to it by the parties. They have shown that they understood the annual payments of principal and interest as falling due on the first of May. That has been the practical payday, as is manifest from the receipts endorsed on the contract. We therefore hold that the defendant has not forfeited his rights under this contract by an omission to make his payment on the 24th of December instead of the 1st of May.

Secondly. The remaining question is, whether the judge erred in holding the tender, on the 1st of May at the house of the plaintiff, a good tender. A tender, at the house, of moneys due upon a mortgage, was held good, in a case where an offer was made to the mortgagee, several days before the payment fell due, and she then declined to receive it, but said that she should be back from a place which she named, about 40 miles distant, before the day of payment. She did not in fact return by the day, and the tender at the house was adjudged valid. This case, (Smith v. Smith,) is reported in the 25th Wendell, 405, and a note of it is also found in 2 Hill, 351, where it is said that Judges Bronson and Cowen agreed to the decision under the particular circumstances of that case; though, as a general rule, the tender should be to the person. We think, if the tender was good in that case it is in this. Here, an ineffectual attempt was made to find the plaintiff, on the last day of April, his house then being closed. On the first of May the defendant’s agent got admitted into the house, but was told that the plaintiff had gone east. From the state of the negotiations between the parties, and from what the plaintiff knew of the defendant’s claim, as to the true payday under the contract, it cannot be doubted that the plaintiff is to be chargeable with notice that the money would be offered on the first of May. He was voluntarily absent, and, as is conceded, out of the county at the time; and the conduct of his family, in refusing to receive the money, and of his wife, in particular, fleeing from the room, warrants a fair inference that the plaintiff intended to render it impossible for the defendant to make a valid payment on that day, and thus produce a forfeiture of his contract. Under these circumstances, should not a tender at the house, (the plaintiff being out of the county,) be held good, under the decision in Smith v. Smith 7 We think it should. In that case the mortgagor might have sent 40 miles and made a personal tender ; as he was informed of the place to which the mortgagee had gone; but in this case all that could be ascertained by the defendant was that the plaintiff had “ gone to the east.” The defendant then could save his forfeiture in no way but to tender at the house. He did so: and left word with the family where the money would be deposited. The plaintiff was personally informed of this, after his return home; but he refused to receive the money, and insisted that the contract was forfeited; and this after all but a small balance of what remained due had been paid at different times during a period of six or seven years ; and that small balance had been tendered at his house.

For these reasons we are of the opinion that neither law nor justice requires the nonsuit to be set aside.

New trial denied.