Harris v. Blen , 16 Me. 175 ( 1839 )

The opinion of the Court was by

Weston C. J.

In Greely et al. v. Thurston, 4 Greenl. 482, it was decided that bills of exchange and negotiable notes, should be paid on demand, if made at a seasonable hour, on the day they fall due, and if not so paid, that the acceptor of a bill, or the maker of a note, might be sued on that day. But this was placed, expressly upon the ground, that by the custom and usage of merchants, these instruments formed an exception to the law upon this point, applicable to other contracts. That, generally, if money is to be paid, or a duty to be performed, the contracting party has the last moment of the day of the maturity of the contract, to pay or perform what he has undertaken to do.

In Leflley v. Mills, 4 T. R. 170, Lord Kenyon so lays down the law, for which he cites a number of authorities, intimating that he had found no opposing case. Buller J. while he assents to the correctness of the general doctrine, insists upon an exception, in respect to bills of exchange. And in the case first cited, the opinion of the court manifestly is, that bonds, mortgages, and instruments in writing, other than negotiable notes and bills of exchange, are not suable, until the day after they are payable.

By the contract between these parties, which does not fall within the exception, the defendant had all the month of May, 1836, within which to pay the second instalment. It results, that he was not liable to be sued upon it, until the first day of June. As there has been a fair trial between these parties, upon the points really in controversy, and this objection does not go to the merits, it is with regret that we disturb the verdict; but as it is a legal point, which the defendant has a right to take, it must be set aside, and a new trial granted.