Armstrong v. McGough

Hart, J., (after stating the facts). In Epperson v. Helbron, 145 Ark. 566, the court held that, under an oil and gas lease stipulating that if no well is completed within one year from date it shall become void unless the lessee pays $60 for each additional year, the lessor may declare a forfeiture at the end of the first year unless payment for such extension is made in advance. It will be observed from the statement of facts that the lease in question provides for the payment of the. annual rental on or before September 11, 1921, and that September 11th fell on Sunday. The fact that the last day for the payment of the rent fell on Sunday raises the question of whether or not payment count be made on the following Monday. The general rule with regard to contracts is that, when an act is to be performed within a certain number of days, and the last day falls on Sunday, the person charged with the performance of the act has the following day to comply with his obligation. The majority rule is that Sunday cannot, for the purpose of performing a contract, be regarded as a day in law, and should, as to that purpose, be considered as stricken from tlie calendar. In computing the time mentioned in a contract for the doing of an act, intervening Sundays are to be counted, but when the last day for performance falls on Sunday, it is not to be taken into computation. 28 A. & E. Enc. of Law, 2 ed. p. 224, and cases cited; Monroe Cattle Co. v. Becker, 147 U. S. 47; Avery v. Stewart, 2 Conn. 69; 7 Am. Dec. 240; Owen v. Howard Insurance Co., 87 Ky. 571; Seibert v. Stiles, 39 Wis. 533; Barnes v. Eddy, 12 R. I. 25; Post v. Garrow, 18 Neb. 682; L. R. & F. S. Ry. Co. v. Dean, 43 Ark. 529, and St. Louis Southwestern Ry. Co. v. Furlow, 81 Ark. 496. See also Street v. United States, 133 U. S. 290, where the rule was recognized in the exercise of a power. The leading case on the subject is Hammon v. American Mutual Life Ins. Co., 10 Gray (Mass.) 306. The insured in that case contracted to pay his premium quarterly and not later than noon on the quarter day. The failure to make the payment forfeited his policy. One of the quarter days came on Sunday, and the insured died in the afternoon of that day. It was held that, as it was unlawful to transact business on Sunday, a tender of the premium on the day following was a compliance with the contract. In that case the court said* . “But as to other contracts, which by the face of the instrument require a payment on a day which proves to be Sunday, to discharge literally the promise or duty, the law seems to sanction the postponement of the time for doing the same till Monday following. In other words, Sunday is not a legal day for the performance of contracts and doing secular business. The statute law forbids all such acts. The party paying and the party receiving money on that day in discharge of a contract would subject themselves to a penalty for so doing. Sunday was not a day contemplated by the parties as embraced in the stipulation to pay a quarterly premium on the first day of October in each and every-year during the life of the party assured. The defendants had no office open on that day, and were under no obligation to receive the payment of the premium on that day, if the same had been tendered by the assured. 'Such being the case, the assured was under no obligation to do what would have, been not only an illegal act, but also one which the' other party was not bound to recognize. In this view of the case there'was no such default on the part of the assured, in not paying the premium fully due on the 1st of October, as should be held to terminate the policy.” In Edmundson v. Wragg, 104 Pa. 501, where the right to recover usury paid was limited to six months after the payment of the usury, it was held that the last day of the six months being Sunday, the party had a right to bring his suit on the following day. In Sands v. Lyon, 18 Conn. 18, where a testator devised to his son a tract of land upon condition that he pay, within a year after the testator’s death, certain legacies, and the last day of the year being Sunday, it was held that a tender on the following day was sufficient to save his right to the land. In that case the court said that the nonpayment of the money was in the nature of a forfeiture, and that the general rule should be applied so as to prevent this effect. In Campbell v. International Life Assurance Society of London, 4 Bosworth’s (-N. Y. Superior Court) Repts., 298, the general rule was applied in a life insurance case where the insured had the option to pay his premium on or before a certain date, which fell on Sunday, and the court held that he might pay the premium on the following day. In Semmes v. Adams, 228 S. W. 353, the Court of Civil Appeals of Texas held, under a mineral lease providing that the lessee might prevent forfeiture ¡by paying á specific annual rental in advance, that, the last day of the payment of the rental being on Sunday, payment on the following day was in time. The holding- was in application of the general rule that, when the last day of the performance of a contract falls on Sunday, performance on the next day is sufficient. Again, in Plumber v. Southern Oil Co., 214 S. W. 896, the Court of Appeals of Kentucky followed the general rule in a suit to cancel an oil lease for the nonpayment of rental. As said by the court in Craig v. Butler, 83 Hun (N. Y.) 286, contracts mature and rent falls due on -Sunday as well as on any other day of the week, and the only effect of the rule of dies non is to postpone the enforcement of the contract to a day which is open to transactions of a secular nature. Following these decisions, we are of the opinion that the general rule fixing the time for the performance of all contracts which, by their terms, mature .on Sunday, should be uniform, and that no distinction in this respect should be made between optional and other contracts. The lease by its express terms was assignable in whole or in part, and we hold that the lessee' and his assigns had a right to pay the rental on Monday, September 12, 1921. It is insisted, however, by counsel for appellees that, inasmuch as the bank did not receive the letter containing the check for the rent until after banking hours on the 12th clay of' September, 1921, and did not credit the amount until the next -day, the forfeiture occurred. This did not make any difference. By the terms of the lease' the bank was made the agent of the lessors to receive the rent. It actually received the letter containing a check for the rent on the afternoon of Monday, September 12, 1921, and credited the amount of the check to the lessors on the next day. The time when the credit was extended to the lessors cuts no figure. This was merely the method by which the bank transacted .its business. The main purpose in the minds of the parties was met and the payment was effected when the bank received the check and accepted it as a payment. This was on the afternoon of Monday, September 12, 1921, and was within the time allowed by the contract under the rule announced above. Of course the officials of the bank would not have to remain there after their customary banking hours in order to receive letters containing checks or other matters, but the fact remains that they did stay there and receive the letter containing the check, and accepted it as payment, on the 12th day of September, 1921. The lessees were not concerned in whether the bank gave the lessors credit on that day or on a subsequent day. They were only concerned in the bank’s receiving the letter containing the check and accepting it as payment on the 12th day of September, 1921. See Yoke v. Shay, 47 W. Va. 40, 34 S. E. 748, and Friend v. Mallory, 43 S. E. 114. It follows that the decree must be reversed, and the cause will be remanded with direction's to the chancellor to dismiss the complaint of appellees for want of equity.