Kilgour v. Miles , 6 G. & J. 268 ( 1834 )

Chambers, J.,

delivered the opinion of the court.

The demurrer obliges the court to look for the first defect in the pleadings, and we think it is to be found in the declaration.

By the letter of the contract, the first day of July was appointed for the delivery of the corn, but that day happening to fall on Sunday, and the law prohibiting the delivery on Sunday, although it does not annul the contract, it follows, that the execution of the contract was due on another day, and the delivery on that other day could be enforced. The failure to deliver on Sunday was no violation of the contract, according to its legal interpretation. There was no more obligation upon the party to execute the contract on Sunday, than there was on a day prior to the date of the contract. Let us suppose then, that the declaration had charged a breach of the contract, in the nondelivery of the article sold on some day prior to the date of the covenant, and confining the breach exclusively to such day; would it not be bad on demurrer, and why? Certainly it would, because the covenant of which proferí is made, shews that the plaintiff had no claim to damages for the act complained of, that act not being at all in violation of the contract set forth.

Now, this declaration claims damages expressly and exclusively for the non-delivery on Sunday.

There are no words that allege or import a failure to deliver on any other day, and this most important particular differs this case from that in 8 Serg. and Low. There the presentment of the bill was alleged to have been made, “according to the tenor and effect thereof,” and the videlicet being struck out, there remained an averment of the fact. Here there is no averment of the non-delivery according to the tenor and effect of the contract, nor any other but specific averment of a non-delivery on the first day of July, which was on Sunday.

The covenant to pay the stipulated price is a mutual covenant, and it was therefore incumbent on the plaintiff, to aver in his declaration a readiness to pay at the time and place, when and where, by the legal construction of the contract the delivery was to be made. 1 Ch. Pl. 278. 1 East. Rep. 203. West vs. Emmons, 5 Johns. Rep. 179. Porter vs. Rose, 12 Johns. 209.

The allegation of readiness to pay, is made solely in reference to Sunday, and the same remarks precisely apply to this necessary averment, as we have before made in re-' spect to the assignment of the breach.

The efforts of the counsel to escape from these obvious difficulties, by taking a distinction between the “Sabbath” (as the day is described in the plea) and the “Lord’s day,” as mentioned in the act of Assembly, or “Sunday,” cannot avail. The Sabbath is emphatically the day of rest, and the day of rest here is the “Lord’s day” or Christian’s Sunday. Ours is a Christian community, and a day set apart as the day of rest, is the day consecrated by the resurrection of our Saviour, and embraces the twenty-four hours next ensuing the midnight of Saturday. But without relying on the plea for the appropriate appellation of the day, or for any other aid, we think there is no difficulty, and the defendant might safely have demurred according to the doctrine of the case of Hoyle vs. Ld. Cornwallis, reported at large in Strange, 387, and the authority of which has never been- disturbed we believe by any later decision.

That case recognizes it as the duty of the court, to notice the days of the week on which particular days of the month fall;

We have found much difficulty in determining whether the legal effect of the contract required its execution on Saturday or Monday. We have no statute or Maryland decision to guide us, and in the case in 2 Con. Rep. the only one produced, we find a great diversity of opinion amongst the judges. In the commercial community, as is-admitted in the argument, the usage is established. In bank transactions, drafts, bills of exchange, and negotiable paper, amongst mercantile men, the pecuniary engagements becoming due on Sunday, according to the letter of the agreements, are discharged on the previous Saturday, and we think, that both analogy and convenience will be consulted, by deciding that the same rule shall govern other cases.

JUDGMENT AFFIRMED.

The appellant’s counsel afterwards, at the same term, moved the court for a procedendo, but the motion was overruled.