Weld v. Barker

Opinion by Mr. Justice Mitchell, By the agreement between the parties the bonds were “ to be held for one year, and not to be sold .... without the consent ” of defendants. Plaintiff bound himself “ to hold said bonds during the above period of one year,” and defendants bound themselves to repurchase the bonds at the option of plaintiff “ at the end of one year from the date of this contract.” These mutual undertakings must be read together. [471] By the general rule the “ one year from the date of the contract ” is to be computed by excluding the day of the date, and there is nothing on the face of the contract to show a different intent of the parties. But the first year to be considered was that during which plaintiff was to hold the bonds and not sell without defendant’s consent. Excluding the day of the date, that year began April 22,1890, and ended April 21,1891. It included the whole of the latter day, and defendants might insist on full compliance. A sale by plaintiff on that day would therefore have been a breach of the agreement. But it was at the end of that year, after he had performed his covenant in full, that plaintiff’s option became exercisable, and this clearly was not until April 22, 1891, when the demand was made. We do not attach much importance to the acknowledgment of the demand by defendants’ assignee, though its terms do specify that it is “ in accordance with the provisions of said recited agreement.” It would scarcely be sufficient to prove a waiver as to time, if in fact the demand was too late. But it is some evidence that the parties themselves, defendants as well as plaintiff, then looked at the question of time in the same light that we construe it now, under the general principles of law. Nor do we think the general rule can be modified by the averment of custom. The affidavit avers such custom “ on information and belief.” Defendants are bankers and brokers, and presumably know the customs of such business, but they do not say of their own knowledge that there is such a custom, nor aver their expectation of ability to prove it. Moreover the custom as alleged is said to be one “ known to dealers in bonds and stocks,” without saying that plaintiff is such a dealer. But waiving these formal defects, the custom as set up is as to an option to sell at the end of any given period, which does not, prima facie, at all touch the present case of an option to. demand a rescission of a sale after a year of obligatory retention by the purchaser, of the articles sold. The second demand on January 2, 1892, was unnecessary, and what took place is immaterial. The agreement of December 8, 1890, is merely an extension of time within which defendants were to pay. It does not in terms refer to this claim [472] at all, for it is limited to debts due, and this was not a debt but a contract which might or might not become a debt at the option of plaintiff. But even if the agreement applies to this claim it contains no waiver of the effect of the demand. The plaintiff’s option was not extended by it, for its purpose was in relief not in enlargement of defendants’ obligations. It did not make them liable for a longer period to the chances of the market value of the bonds, and the plaintiff’s option thereon, but gave them additional time to pay, if the obligation to pay should arise under the contract. The plaintiff, therefore, having given notice, in the manner and at the time stipulated in the contract, of his intention to exercise his option to have the bonds repurchased, his only further obligation, under the agreement of extension, was to wait the agreed time before proceeding to enforce his rights by suit. The affidavit discloses no valid defence. Judgment reversed, and record remitted for the entry of judgment for plaintiff unless other legal cause be shown to the contrary.