Page v. . Shainwald , 169 N.Y. 246 ( 1901 )

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The legal effect of the agreement between the plaintiff and the defendant was to require the defendant, if requested so to do by the plaintiff on the first day of January, 1898, to take plaintiff's stock in the Hoffman Machine Co. at the price named therein. The plaintiff failed to tender his stock and make the request on the day named, but did so on the third of January. As the first day of January was a holiday and the second came on Sunday, the plaintiff insists that his tender and request were in time. But the difficulty with his contention is that legal holidays have not been placed on the same basis as Sunday by the statute. Indeed, in only two respects has the legislature attempted to interfere with the ordinary course of business whether public or private on a holiday other than Sunday. The first act provides that a negotiable instrument maturing on a holiday is payable on the next succeeding business day (Laws 1887, chapter 289), and the second that holidays shall be considered as Sunday for all purposes whatsoever, as regards the transaction of business in the public offices of the state or of the counties of the state. (Laws 1897, chapter 614, section 1.) If the legislature had omitted the limitation of the preceding statute to the transaction of business in the public offices of the state or counties of the state, thus providing that holidays should be considered as Sunday for all purposes whatsoever, the plaintiff's contention would be well founded. But in the present state of the statutes, we are of the opinion that upon holidays other than Sunday, all transactions may be carried on as on any other day, with the exceptions above noted. And so we said in effect inWalton v. Stafford (162 N.Y. 558). It is undoubtedly true that the state of the law on this subject is likely to prove embarrassing to many, such for instance as those who find themselves obliged to tender a considerable sum of money on a day which is just enough of a holiday to allow the banks to close, from which he must obtain the money to make a tender, but not enough of a holiday to avoid the necessity of a tender if he would not breach his contract. But such faults, if faults they be, in our business law can be corrected only by the legislature.

The plaintiff's further contention is that he is entitled to recover because the defendant waived his right to object that such tender and demand was not made on the proper day and in that respect the Appellate Division seems to have agreed with him. We are unable to concur in that view. The plaintiff's right to require the defendant to take and pay for his stock was lost when he allowed January first, 1898, to pass by without tendering to him that stock and demanding the payment of the agreed price. Thereafter the contract was at an end and the situation was precisely the same as if there had never been one. Either party had a right, of course, to undertake negotiations to revive the old contract or make a new one, but such a purpose could only be accomplished by a meeting of minds in agreement as to what the new contract should be, whether on the basis of the old or on entirely different lines. Now, the parties did not come to any agreement and about this fact they do not differ. Two days after the contract had ceased to have life the plaintiff made a demand in writing and tendered the stock, but the defendant replied: "You must give me a little time to consider it," and the next day he returned the stock as was his legal right. A little later the defendant offered to give the plaintiff his note for $2,500, as he explained, on the condition that the plaintiff would take the risk as to the rest of his investment, which he thought the stock might prove to be worth. The plaintiff did not accept this offer, and so their conferences ended without the making of a different agreement from the old or the renewing of its life, and in such case the plaintiff must fail to recover, because he has no contract to enforce.

The doctrine of waiver, often applied in cases of forfeiture, has no place in this discussion, for there was nothing to forfeit January third when the plaintiff tendered the stock. The contract upon which he was apparently relying was dead, and had been for two days, and whether he realized it or not the plaintiff was in fact a suitor for the enjoyment of a second option. The defendant refused to accord it to him and there the matter must end, so far as the courts are concerned, for it was the defendant's legal right to refuse.

The judgment of the Appellate Division should be reversed, and the order of the trial court affirmed, with costs to abide the event.

GRAY, O'BRIEN, HAIGHT, LANDON, CULLEN and WERNER, JJ., concur.

Judgment accordingly.