I concur with the Chief Judge, except in relation to the tender. I think that was too late.
The note was executed on the 6th day of December; and was payable in sixty days from its date. If the day of the date is included, the note fell due on Saturday ; if it is excluded, Sunday became the sixtieth day, or day of payment. Where a person promises to do an act on a future day, which is Sunday, he knows that his promise cannot literally be fulfilled. It must be performed the day before, or the day after, the one prefixed. On which of those days is matter of construction. The correct principle, in my opinion, is this j i hat the performance shall be as near to the agreement as possible, hut must not include a longer period, than the one which the contract expressly assumes.
It is a general rule, “ that when a computation is to be made from an act done, the day in which the act is done must be included.” Rex v. Adderley, Dougl, 462. 464. Castle & al. v. Burdilt & al. 3 Term Rev. 623. Glassington al. v. Rawlins & al. 3 East, 407. The act which gives existence to a deed, is the delivery of it. Rejecting all con - siderations arising from usage, or the necessity of giving a construction rs shall render the deed available, the *78day of the date of the promissory note under discussion, ivould be included. But the custom of merchants has settled the point differently. The day of the date is excluded from calculation. Chit, on Bills. 338. The note, then, being, by the express appointment of the parties, payable on Sunday, what is the legal construction of this promise ? I answer, that the note became due on Saturday. The words of the contract are equally disregarded, whether the note i? considered to have fallen due on Saturday, or on Monday. It cannot he construed according to the letter. The parties knew , that the note could not he paid on Sunday, and they must have intended it should be performed on the day precedent, or subsequent. Before I assign my reasons, in support of the opinion above expressed, I will consider the arguments relied on to shew, that the note was payable®n Monday. ,
It is said, that where a person stipulates to do an act on a given day, if the law forbids the performance of it at the time, he may perform it as soon after, as is legally possible. This is, undoubtedly, a true position, if the legal impossibility of strict performance, arises posterior to the contract. Shep. Touch, 369. Co, Lilt. 206. a. The question in the case supposed, is not, as it is in the one under discussion, what is the construction of the contract ? But it is, whether the law does not exempt the party from a strict performance, which it has rendered impossible, it was contended, and with perfect correctness, that if a person agrees to do a lawful, act, which circumstances render impossible to perform literally, lie must execute his agreement, as near to the intent of the condition as he may make it. Co. Litt. 219. a. b. Shep. Touch. 369. That is, if a natural or legal impossibility prevent the performance according to the letter, he shall execute his contract pursuant to the spirit and intention of it. Nothing can be more equitable. But, whether the performance, in the case under discussion, is held to be on Saturday, or on Monday, the nearness of the performance with the time literally prefixed, will be precisely the same. The inapplicability of the rule consists in this, that it has no bearing on the material point of controversy. The question is not, whether the defendant shall fulfil his agreement as nearly to the letter of it as he may, and exactly according to its intent and spirit. If it were, the rubí laid down M ould *79be apposite, and in point. Hot the only enquiry is, what is the legal effect of the note, as to the. lime of performance, —what the construction ? Towards this question, the rule commented on has no direct ion.
It, was said, that the Sunday on which the note was made payable, must be expunged from calculation. Why not, then, on the same principle, strike out all the Sabbaths included within the sixty days ? It requires little discernment to see, that the above position proves nothing. It is merely an inference, and takes for granted the point; in dispute. If the note, by legal construction, is payable on Saturday, the assertion is out of the question. But if Monday is the day of payment, the day before must be excluded from computation. The question recurs, which of those periods is the correct time of payment ? And this is the point which remains to be proved.
Equally unfounded was another assertion, that the prom-issec would not expect, or be ready to receive, the article promised, until after the Sunday expressly appointed. This again is an inference founded on a petitio principii, a begging of the question in dispute. If the contract fell due on Saturday, by construction of law on the terms of tine note, the party promising knew, that he must perform it on that day : and the promissee knew, that he must be ready to receive the article promised. But if, as the assertion presupposed., the note fell due on Monday, that was the time when flu performance would be expected.
It was said, that no person can ho compelled to perform his contract, previous to the time stipulated. If by this is intended only, that the performance of a contract cannot be demanded until the time of payment, according to its genuine intent and construction, has arrived, it is a mere truism, and not susceptible of dispute. But if the meaning is, thal a contract, in the terms of it, payable on Sunday, includes the Monday succeeding before it falls due, it is a proposition I cannot admit, until it is substantiated by proof.
It w'as contended, that as the order to plead in four days, if the fourth day be on Sunday, includes the following day, so a stipulation to perform an act on Sunday, includes the Monday succeeding. This argument is founded on a supposed analogy, and to be of any avail, the analogy must be perfect. The comparison involves a consideration of the *80words, the subject matter, the effects and consequences, and the reason and spirit of the subjects compared, I shall not trace the dissimilitude beyond a brief enquiry into the reason of the rule relative to pleading, in Lord Conin^slnfs case, 8 Mod. 21. a rule to plead was made on Thursday, giving the defendant four day s. On the following Tuesday, the plea was deposited in the proper office-. An objection was made, that Sunday should be included, and in that court, the plea should have been filed oti Monday. But the court said, « these four days must always be reckoned suris day s where in the defendant may plead, and when the offices are open r. the jileas which are put info the respective offices of Use several courts, were originally pleaded in court: and therefore., Sunday is never reckoned one of these days, because neither courts nor offices are. then ojien,” And in Lee v. Carlton. 5 Term Rep. 642. Buller, J. said, «in some instances, when any act is to be done by the party, in a limited number of days, as in the case of a motion in ar rest of judgment, the party has four laxe days, when the court is actually sitting, in which to do it; and in those cases, Sunday is not one, though it be an intervening day.” But as to the business done out: of court, Sundays are reckoned the same as other days. 20 Vin. Jibr. 64. The different reasons applicable to the cases sujiposed analogous, demonstrate, that one is no example for the other. These are the principal arguments urged by the counsel for the defendants, and in rny opinion, they fall entirely short of the proposition they were adduced to sustain.
I have already observed, that the performance of the contract should be as near to the letter of it, as it may be $ and that it will be equally near, whether the day of payment is considered as being Saturday or Monday. The other branch of my proposition is this, that it must not include a longer period than the one which the contract exjircssly assumes. In other words, the party promising must perform within the time prefixed. To enlarge the, time of a contract, is jus dicerc, non dare. If the contractor has appointed a day on which to perform, when, bylaw, he. cannot, he did it with his eyes open, with full knowledge, that unless his agree ment was void 1'rom the impossibility of performance, is. could not be executed on the day prefixed. What, then, is the reasonable consequence ? As the party promising knew . *81tliat his contract could not literally be accomplished, and as he knew likewise, that he must perform within the limits of the time assumed, he must have expected and intended to have fulfilled it on Saturday. This, in my judgment, is the fair legal construction. If it wanted fortifying, it would derive it from the well known maxim, a rule of some strictness and rigour, and the last to be resorted to, that the construction is to be most strong against the party promising. 2 Black. Comm. 380.
A person is not always entitled to the full express time stipulated, in which to perform his agreement. If there be a contract to tender stock upon a day certain, “ a tender of transferring may be made at the uttermost convenient time of that day, before the books are shut.” 6 Bac. Mr. 454. And if it were a supposable case, that it was known by a person promising to do an act, that it would be lawful to do it in the former part of the day prefixed, but that all business in the latter part of the day wTas prohibited, would there exist a doubt, that he must perform before the forbidden time rendered it impossible ? Should not the person who lias promised to pay a sum of money on Sunday, a day on which he knows he cannot perform his contract, be considered as stipulating to do it within the time limited, that is, on Satu rday ?
This question, in respect of negotiable notes, has long since been answered in the affirmative. 1 Ld. Raym. 743. Chit, on Bills, 141. " By the custom of merchants, if a bill of exchange, including the three days of grace, falls due on Sunday, the holder must demand the money on Saturday ; and in case it is not then paid, must consider the bill as immediately dishonoured.” I consider the three days of grace, which by usage are allowed in addition to the time stipulated, in bills of exchange, and promissory notes which are negotiable, as if they were expressed on the face of them. They are equivalent to three days superadded to the specified term, aud in no respect to be distinguished. The usage of merchants is not, that there shall be three days of grace on bills, but if the last day happens to be on Sunday, there shall be two only ; but it is universal, and without exception, that there shall be three days of grace. By construction of this contract among merchants, in analogy to the common law, if the day on which the bill falls due, is Sunday, when it can neither be demanded nor paid, it shall be considered as payable on Sntur *82day. The application of the rule to the present case, 1⅜ obvious and forcible. Between a negotiable note becoming due on Sunday, and a note not negotiable payable at the same time, I perceive a distinction, but no essential difference. The construction, in my opinion, should be the same in both instances. It cannot comport with public convenience, that, a different rule should prevail, in cases so very similar. It is much preferable, that there should be one uniform rule on this subject, than that a diversity should exist, which will embarrass mankind in their intercourse with each other, and may be a fruitful source of error and litigation.
The argument by a sheriff, when an execution, by the terms of it, expires on Sunday, that he should be indulged with the day succeeding to make return, would be, in my opinion, as well founded, as that of the promissor of a note made payable at the same time. But it is established law, that “ if the return day of the writ be on Sunday, and the return appears to be made on that day, it will be bad ; nor can it be made on any day subsequent.” 1 Back. Slier. 259.
In fine, in my judgment, one uniform rule of construction on the point under discussion, is desirable. The person who promises to do an act, must, at his peril, if there has no impossibility arisen posterior to the engagement, perform within the time explicitly assumed. If a contract is stipulated to be performed on Sunday, the legal construction is, that it shall he done on the preceding Saturday, This is agreeable to the usage of merchants, in l’espcct of bills of exchange and negotiable notes ; an usage not arbitrary and founded on no reason, hut bottomed on common sense and common law. And in this opinion I am more deeply confirmed, since no case has been adduced to shew, that a person has been allow ed a period to perform in, beyond the express limitation oí his contract.
Goci.o, J.Upon ihe motion for a new 1 rial, the question first in order, is, whether parol evidence was admissible, to show what was meant by the words, i; wholesale factory prices” ? These words, I confess, would seem tí) me, prima facie, to import the actual wholesale market prices, at the factory. But if this, or any other similar term, is, by the common consent, and general usage, of all dealers in a particular branch of business, used in a different sense, and *83so understood by tlieir customers | there can be no reasonable objection to a party’s proving it by parol. It is like the common case, of any term of measure, or quantity, used, in particular places, or in particular branches of business, in a sense different from the common one ; and, like any other latent ambiguity, may be explained by parol evidence. The other question, presented under this motion, may be more conveniently considered after those, which have been raised under the motion in arrest of judgment.
Under the latter motion, the first enquiry is, on what day the note was, by the terms of it, payable ? And upon this point the question is, merely, whether the day, on which it was executed, is to be includedor excluded, in the computation? This, considered as an original question, is a mere question of inten - tion. And therefore, without entering, at all, into the distinctions, discussed in the case of Pugh v. Leeds, and other similar cáses, relating to conveyances,— it is sufficient to say, that those distinctions have no application to personal contracts, like the present. In such contracts, when payable at a given time from or after date, there can be no doubt, that, according to the understanding and intention of the parties, (which, if not contrary'to the rules of law, certainly ought to govern the construction,) the day of the date is to be excluded. And this 1 take to be the true rule. Otherwise, he who gives an obligation this day, for the payment of money, one day after date, is suable inst(inter, though the contract imports to be payable in future \ and the appointment of a future time of payment is useless and void. In the case of bills of exchange and promissory notes, the day of the date is, confessedly, excluded; and what difference car* there be, in this respect, between a contract for the payment of money, and one payable in specific articles ?
According to this view of the subject, the note in question became payable on Sunday. But payment on that day, is prohibited by law. The question, then, arises, whether the tender should have been made on Saturday or Monday. It has been argued, that the debtor, in such a case, must, at liis peril, pay or tender, at all events, within the time appointed. It would seem to me quite as reasonable, to say, that he cannot, in any event, be required to pay, nor the creditor to accept payment, before the time appointed. It is true, as to contracts, on which days of grace are allowed, *84that if the last of those days is Sunday, payment must be ma,]e on Saturday. But the allowance of grace was, originally, a mere indulgence, which it might be very reasona-hie to qualify with greater strictness, than if it had been dcmandable, as a matter of right. At any rate, the allowance of grace is an anomaly ; and the rules, resulting from from it, are, of course, not to be extended by analogy.
Upon the whole, the doctrine, which appears to me most reasonable, is, that 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 distinction is analogous to the modes of computation, under the common rule for pleading in abatement. 3 Term Rep. 642, If this view of the question is just, it follows, that, in the note, on which the present action is brought, the Monday, on which the tender was made, must be considered as the sixtieth day, and of course, the true day of payment.
As to the time of day, at which the tender was made,— the point upon which it is said the jury were misdirected,— I cannot persuade myself, that the rule, requiring a tender to be made before sun-set, was ever meant to apply to cases, where the creditor is absent through the whole day. The rule was made for his convenience; that he might have a fair opportunity to examine, compute, and take an account of, the money, or other property tendered. But if he will not appear, at all, at the place appointed, to avail himself of the benefit of the rule, he waives it: for it can be of no pos - sible advantage to him. While at a distance from the place, where the property is, he can no more examine it, by daylight, than in the dark. And his right and opportunity to make a subsequent examination, is the same in the one case, as in the other.
I concur in the opinion, Unit neither of the motions can prevail..
Motion in arrest, insullicient.
’.New trial not to he granted.