Durand v. Sage

By the Court,

The only question in this case is, whether the respondents had by default of payment, lost all right to pay and call for a performance of the contract. We are of the opinion that they had not. For, without en*153tering into any examination of the various defaults made, and the various offers to pay; on the other hand, we think it appears from the evidence that the whole matter was arranged between the parties upon the basis that the respondents’ rights were still to continue, and that they were to pay on the 20th of March, 1855. The details of the arrangement are not proved, but it appears sufficiently that such arrangement was made, and that by it Sage was to have been paid on that day. Du-rand being absent on that day, wrote to his clerk to go and pay all that was due. But not getting the letter in time to pay on the 20th, he went the next morning and offered to pay the entire sum, which Sage declined to take on the ground that it had not been paid the day before, as they had agreed.

We think the previous defaults had been waived by this arrangement, and that time was not so much of the essence of the contract as that one day’s default should- defeat the rights of the respondents.

The judgment of the court below must be affirmed, with costs.