Sweet v. Harding

The opinion of the court was delivered by Kellogg, J. Upon the hearing in this court two questions have been presented for consideration. 1. The plaintiff insists, that the tender was not made in time, and consequently that the same cannot be sustained. We are aware, that the opinion has prevailed to some extent, that, in order to make a legal tender of either money, or specific articles, it must be made, not only on the day specified in the contract, but, in the language of some of the old authorities, at the uttermost convenient time of the day, and before the sitting of the sun, or at least before dark ; and authorities are often cited to sustain that position. Indeed, in the case at bar, a dictum from Swift’s Digest has been cited to that effect. But it is believed, that those authorities, when examined, will be found to apply to those cases, only, where the tender is made in the absence [589] of the party, to whom, by the terms of the contract, the tender is required to be made. To such cases these authorities are applicable and are unquestionably good law. But it was held by this court, in the case of Thomas v. Hayden, Windsor Co., July T. 1846, that a tender of rent on the day on which the same fell due, made to the lessor, at a late hour in the evening, was a valid tender. Nor is there any difference, in that respect, between a tender of money and specific articles. Startup v. Macdonald, 46 E. C. L. 593. To this extent we understand the authorities to go; and we are not aware that they go any farther. In the case at bar, the plaintiff, the payee of the note, did not attend on the day and at the place specified in the contract for the performance of the same. If, then, the defendant, in the absence of the plaintiff, would have discharged himself from the contract by a legal tender, he should have made the same before the evening of the day, on which the contract fell due. The tender not having been so made, the same was invalid; and for this cause the judgment of the county court must be reversed. 2. A farther question has been made and discussed, in relation to the place where the tender was made; but inasmuch as the case is disposed of by the previous question, it is unnecessary to express any opinion upon this.