Post v. Garrow

• Decision Date: 19 January 1886
• Citation: 26 N.W. 580,18 Neb. 682
• Parties: W. D. POST, PLAINTIFF IN ERROR, v. ALEXANDER GARROW ET AL., DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

26 N.W. 580

18 Neb. 682

W. D. POST, PLAINTIFF IN ERROR, v. ALEXANDER GARROW ET AL., DEFENDANTS IN ERROR

Supreme Court of Nebraska

January 19, 1886

ERROR to the district court for York county. Tried below before NORVAL, J.

AFFIRMED.

France & Harlan, for plaintiff in error, cited: 2 Benjamin on Sales § 1054. Metz & Albrecht, 52 Ill. 491. Clark v Dales, 20 Barb., 42. Porter v. Rose, 12 Johns 209. Garret v. Gonter, 42 Penn. State, 143. Kitzinger v. Sanborn, 70 Ill. 146.

M. L. Hayward and Scott & Gilbert, for defendants in error, cited: Avery v. Stewart, 2 Conn. 69. Barrett v. Allen, 10 Ohio 426. Salter v. Burt, 20 Wend. 205. Barnes v. Eddy, 12 R. I., 25. 2 Parsons on Cont., 178 and 179--4th Ed. 2 Hill, 378, note b. Brooklyn Oil Refinery Co. v. Brown, 38 How., 449.

OPINION

COBB, CH. J.

The principal question in this case is, whether a contract for the sale of cattle, "to be delivered at Bradshaw station on or before May 20, 1883," May 20, 1883, being Sunday, became due and terminated on that day, or did it continue alive and capable of being executed during the whole of the following Monday.

The cases cited by counsel for defendants in error seem to settle, to my satisfaction at least, the law to be, "That," in the language of Gould, J., in the leading case of Avery v. Stewart, Sup., "as Sunday cannot, for the purpose of performing contracts, be regarded as a day in law, it is as to that purpose to be considered as stricken from the calendar, though intervening Sundays are, doubtless, to be counted as in all other computations of time, because they are not appointed for the performance of any act. And this rule applies to all time contracts except those where, under the statute or the law merchant, days of grace are allowed."

The day for the performance of the contract sued upon, then, being Sunday, the true day for its performance and termination was Monday, the 21st day of May, 1883.

The contract contains a further provision in the following words: "Said steers to be weighed at feed lots any time in afternoon before 6 o'clock." Upon this provision and the evidence applicable thereto the plaintiff in error, in his brief, raises the question that, even if the defendants in error had all of the 21st day of May in which to receive and pay for the cattle, the terms of the contract providing that the cattle should be weighed before 6 o'clock being also applicable to Monday the 21st, the plaintiffs were not in time to claim the benefit of said contract. It is probably sufficient to say upon this point that the evidence being conflicting as to the precise point of time at which the agent of the plaintiffs arrived at the place where the cattle were, ready to witness the weighing, and the jury having found for the plaintiffs, it must, for the purposes of this opinion, be assumed that said agent arrived there and met the defendant at five minutes before 6 o'clock of the 21st day of May; by railroad time, which, in 1883, was somewhat faster than sun time. The only possible ground, then, upon which plaintiff in error can claim a forfeiture of the contract is, that at the time of the arrival of the agent of the plaintiffs at the place where the cattle were, there did not remain sufficient time to complete the weighing of the cattle before 6 o'clock. It is not clear, in any event, whether the true meaning of the contract is that the weighing of the cattle should be completed before 6 o'clock. Probably its terms would be fully complied with upon the weighing being commenced before 6, to be completed in good faith. And that construction would certainly be given it, when, as in this case, the former construction would involve a forfeiture. According to the evidence it would take from a half to three-quarters of an hour to weigh the cattle. On that day the sun set at ten minutes after seven o'clock. Had the weighing commenced at five minutes before six, it would have been certainly completed more than a half hour before sundown.

It seems from the bill of exceptions that on this day, the 21st day of May, the cattle were two miles south of Bradshaw. There is no evidence as to where they were at the time of the making of the contract, nor as to what "feed lots" were contemplated by the use of that language in the contract. True, it would be presumed that the cattle were, on the 21st day of May, in the same feed lots as at the date of the contract, were it not that on the 7th day of April, as shown by exhibit K, plaintiff in error wrote to Garrow Bros., among other things, "My feeder leaves middle of next week, and I must move the cattle then." The language of the contract providing for the delivery of the cattle "at Bradshaw station on or before May 20," and again "said steers to be weighed at feed lots any time in afternoon before 6 o'clock," would seem to me, in the absence of any explanation, to indicate that the steers were then in feed lots at Bradshaw station.

It must be borne in mind that the plaintiff in error had received three hundred dollars of the purchase money for the cattle in question. This money he claims as a forfeit by reason of his having complied with the terms of the contract in every particular on his part, while the defendants in error have failed to comply with the terms of the contract. By the terms of the contract he agreed to deliver the cattle at Bradshaw station on or before May 20, 1883, at buyers' option. He could not technically comply with this contract without having the cattle at Bradshaw station ready to be delivered on that day, or that day being Sunday, on the next day, unless he was prevented by some act of the defendants in error. And had the defendants in error failed to be present either in person or by agent at the time fixed upon by another clause of the contract for weighing the cattle, would that be such an act or omission on their part as would enable the plaintiff in error to claim the fulfillment of the contract on his part without having the cattle at Bradshaw station at all? Possibly there may be something in the usages or necessities of the business of buying and selling fat cattle to take the case out of the general rules and principles of law, but if so, it is not indicated by the language of the contract, or shown by the evidence.

Upon the trial the...