Rankin v. Woodworth

Per Curiam. Viewing this case in the' aspect most favorable to the plaintiff below, by taking the date of the precipe to be satisfactory evidence of the commencement of the action, and it certainly is not Conclusive', — the ¡joint is still against him. By the Contract, the work was to be finished by the ensuing month of November, which, in the popular acceptation of the wordj excludes the month. When a thing is ordered by a particular day, it is with a view of hayihg the use of it On the day. Thus, a coat is ordered [49] by Sunday, with a view of wearing it to church. And the popular 'agrees with the philological import of the word which is explained by our great lexicographer, by the words, “near, beside, passing, in presence;” all of which denote exclusion. The action was; therefore, not brought within six years from the period limited for the execution of the Work. As to the point made, that the statute did not begirt to run before the plaintiff had received actual damage from the imperfect execution of the contract, it is sufficient to say, it ran from the instant when first he had a right of action, which, from the form of the suit here, was the period limited for the completion of the work. If, as is alleged, the defect was in the manner of the performance, the plaintiff was bound to judge of that before he took the work off their hands; and if there were a fraudulent concealment of its quality, a special action on the case, perhaps, would be the remedy for that; but it is not a matter to suspend the operation of the statute, in this action. Judgment reversed, and a venire facias de novó awarded.