Smith v. Walton

In cases of this kind it is now the practice to plead that the tender, though made on the last day for the payment of the money or the delivery of the goods, was not made within a reasonable and proper time for the receipt of the money or the acceptance of the goods by the defendants before the last hour or midnight of that day, and in the latest case in which the question here presented was most fully argued by counsel and maturely considered by the Court of Exchequer Chamber in England, the general and correct doctrine of the law on the subject is well stated by Parke, P., where no place is named in the agreement for the payment or delivery, or no established usage prevails to the contrary, as in the case of promissory notes and bills of exchange, and that is, that the party has the whole of the day at any place where he may meet the other party, and have the proper means and opportunity so far as they are both *145concerned of making the tender, in which to make it, subject to the qualification just stated. In such a case he says the party bound must find the other at his peril and within the time limited if the other be within the four seas, and he must do all that without the concurrence of the other that he can do to make the payment or perform the act, and that at a convenient time before midnight, such time varying according to the quantum of the payment or the nature of the act to be done or the delivery of the goods to be made and received. Therefore, if he is to pay a sum of money he must tender it a sufficient time before midnight for the party to whom the tender is made to receive and count it ■ or, if he is to deliver goods, he must tender them so as to allow a sufficient time for the examination and receipt of them by the other. This done, he has so far as he could paid or delivered within the time; and it is by the fault of the other only that the payment or delivery is not complete. Startup v. Macdonald, 46 E. C. L. R. 623.

In this case there was no such established commercial usage in contemplation of law as required that the tender of the payment should have been made to the defendants at either of their places of business, or within the usual business hours on the day in question, or before sunset anywhere on that day in the absence of any stipulation in the contract to that effect;

Judgment is therefore ordered to be entered for the plaintiff on the demurrers.