Eaton v. Emerson

The caso was continued, for advisement, and the opinion of the Court was afterwards drawn up by Weston C. J. The first payment to be made, according to the condition of the bond, and the terms of the notes given, was [340] the note which fell due at the end of the year, and the interest on the three other notes. If the defendant, after the execution of the contract, agreed to extend the first payment another year, as the jury have found, we think the enlarged time applied both to principal and interest. On the twenty-first of June, 1832, a sufficient sum was tendered, to cover the amount of the two first notes, with interest on the whole. It is insisted, that this tender, as it respects the second note, was two or three days too soon, and that the defendant was not then bound to receive it. If the plaintiff had claimed'a deduction of interest, it might have been objectionable; but as there was an actual tender of the interest for full two years, more especially as the defendant admitted the tender, and made no objection on account of the time, we are of opinion, that it must be regarded as good for the first two notes, and the interest on the whole for two years. Excluding the day of the date, in the computation of time, which is the rule in regard to notes of hand and bills of exchange, the third note became due on the twenty-third of June, 1833. Chitty on Bills, 343; Windsor v. China, 4 Greenl. 298. The plaintiff had the whole of the twenty-third of June, in which to pay the note; but a tender on the twenty-fourth was too late by one day, according to the condition of the bond, and the terms of the note. Nor do we think-that the plaintiff can charge the defendant upon the bond, without a tender on his part. The defendant might have conveyed the land to the plaintiff, notwithstanding his subsequent obligation to convey to another. The bond and the notes, referred to in the condition, were parts of one transaction. After the bond had been prepared and executed, according to the deposition of Nathaniel Atkinson, the plaintiff wanted to have the notes written, so that the first payment should not fall due under two years. The deponent states, that the defendant declined to have them so written; but said he would wait for that period of time. This must be regarded as inadmissible, according to the whole current of the authorities. The written instruments executed at the time, are the only legal evidence of what the parties then agreed ; and they cannot be varied, enlarged •or extended by parol testimony. There is, it is true, other evidence tending to show a subsequent enlargement of the time, which is not [341] liable to objection; but as this was a point controverted, the jury might not have been satisfied of this fact, without tile aid of Atldnson’s deposition, which was incompetent. The verdict must be set aside, and a new trial granted.