I concur in the result of the opinion by RAILEY, C., in this case. I do not follow him in all of the arguments made. To my mind the whole case turns upon the construction to be given to the contract involved. The Sunday laws are not involved, for the reason that such day is not mentioned in the contract, and the contract does not require work to be done upon that day of week. The contract fixes a time when the contract must be completed, i.e. 130 days from the date of making. It excludes from the count time lost, but does not mention Sundays in this exclusion. It fixes the time within which the work must be completed, or within which the act must be performed. The only matter of construction is, does this require the exclusion of the Sundays in computing the time? Under well established precedents, I do not think that it does. Suppose that this contract had provided that the work must be completed on February 1, 1915? This would be just 130 days from the making of the contract, excluding September 24th, the day that the contract was made. Suppose further that this same contract, with the date within which it must be completed *Page 146 fixed as of February 1, 1915, had further provided (as the instant contract does provide) that "the time fixed for the completion of this work shall be extended for such length of time as the contractor may be actually and necessarily prevented from pursuing said work by reason of bad weather, a general strike of his employees, or injunction against him," could it be said that the Sundays should be counted out? We think not. The instant contract does not fix February 1, 1915 (in words), as the date upon which the work must be completed, but it does fix the time just as definitely as would have been done by using the words "February 1, 1915." The intent was to fix a date within which an act must be done. Completing the work at any time prior to the date fixed fulfills the contract, but completing it at any time after the date fixed does not measure up to the contract obligations. By using a sufficient working force the work might have been finished in a very much shorter time than the time-limit of the contract, but this is by the wayside. The contract fixes a time-limit within which the work must be completed as definitely as if it had mentioned the day, the month and the year. In such situation Sundays fall within the terms of the time-limit, and cannot be counted out in order to extend the time-limit.
The opinion of the Court of Appeals conflicts with at least some of the cases cited in the opinion, and with this general rule of the law. I therefore concur as aforesaid.