Sherlock v. Thayer

By the Court, Martin, J. The only question presented in this case is, what was the intention of the parties to the lease in question, expressed by the stipulation that the rent should be paid weekly, in advance. By the assent of counsel for both parties, that the term commenced on Tuesday, the 11th April, an assent conformable to- the now well-settled doctrine regarding computation of time, we are saved much trouble in the solution of this question. The week then commencing on Tuesday, ended on the Monday night following ; were the rent payable weekly, at the end of each week, rent, if not paid during Monday, would be in arrears on Tuesday morning, so that the landlord might re-enter, or maintain his action therefor. Such is the doctrine of Donaldson vs. Smith (1 Ashmead, 197), cited by counsel for the plaintiff in error. But a different question is here presented. Admitting that the weekly term ended on Monday, when was payment to be made for the next week, within the meaning of the covenant to make the same m advance ? As in the case of rent payable at the end [358] of a term or specified period, as of a quarter, the rent would not be in arrear and due until the end of such term or quarter ; so we apprehend, when it is payable at specified periods in advance, it cannot be said to be demandable until the commencement of the period covered by such rent. A covenant to pay m advance, is performed by payment at the time the possession is taken and the time commences, and no rule of law requires such covenant to be executed before possession taken. In such cases, possession and payment are concurrent acts; and the tenant being in possession, is entitled to the weekly interval between payments, as well as his landlord to the weekly right to demand payment. The rent then, in this case, could not have been demanded on Monday, for it was not then due, as the weekly term had not commenced ; and if Thayer could pay it at any time on Tuesday, he had the whole of that day to pay it, as the law knows no division of a day. (See Lester vs. Garland, 2 Cow., 605.) The only case we have been able to find which bears directly upon the question before us, is that of Smith vs. Sheppard (15 Pick., 147), where it was held on a covenant to pay rent quarterly, in advance (the first day of the quarter falling on the first of October), that the lessee had the whole of that day in which to pay it. The principle settled by that case is, that when rent is made payable quarterly, or at other stated intervals, in advance, the tenant has the whole of the first day of each succeeding quarter, or other interval of time, in which to make the payment. This rule is founded in reason and justice, is consistent with the rules of law in analogous cases, and with the common understanding and experience of men, and operates to place such a construction upon the covenant as will preserve the rights of both parties to it. "Were there any doubt respecting the meaning of the words or intention of the parties, we should arrive at the same conclusion, by observing the well-settled canon of con [359] struction, that words are to be construed according to their legal sense or ordinary import, and, if this be doubtful, the intention of the parties to the contract is to govern. If this intention is doubtful, such a construction is to be adopted, if • the wards will admit of it, as will save an estate, rather than create a forfeiture. (Í.Piole., 485.) The judgment of the Court below must be affirmed. Present, Martin, Green, Wing, Pratt, Copeland, Johnson, Bacon, J. J. Douglass, J., did not participate, having decided the cause in the Court below.