This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The time at which a contract is to be performed depends upon the intention of the parties as ascertained from the language which they have used as interpreted by the ordinary rules of construction together with such surrounding circumstances as may be considered in ascertaining such intention.1 Accordingly, it is dangerous to attempt to lay down arbitrary rules for ascertaining such intention. A few illustrations of the results reached by the courts in specific cases may be given however. A contract to pay or deliver "by" a certain day gives the whole of such day for performance.2 Thus a subscription conditioned on raising a certain sum "by" a certain day is enforceable where the requisite amount is subscribed at a meeting held on the night of such day.3 A contract to perform on or before a certain day gives to the promisor the whole of that day on which to perform.4 A promise to pay "on or before" a certain day is treated as a promise to pay on that day, with an option to pay before the time designated.5 A contract to reimburse one for loss sustained by reason of his purchase of stock "at or before the expiration of five years." means five years from the date of the contract, and not five years from the loss.6 A contract which, by its terms, is to be performed within certain specified dates, excludes the last of such dates.7 A contract which provides for completing certain work within a certain time and for a test and for remedying defects, if any are found upon such tests, is to be construed as authorizing such test and such remedying of defects within the time fixed for completion, at least if any other construction would defeat the right of materialmen to a mechanic's lien.8 A surety upon a contractor's bond, which limits liability to a certain space of time, is liable for defaults which occur within such space of time, although the exact amount of the liability is not ascertained, nor is the action brought within such period.9 A promise to perform within a certain time from a given event is to be construed by counting from the completion of the event. Thus a provision for furnishing proofs of loss sixty days after the fire causing loss, means sixty days after the fire has ended, if it lasts for more than one day.10 A provision for delivering certain bonds within six months after a foreclosure sale, means within six months after the sale is consummated by the delivery of the deed.11 A contract to exchange realty when a certain loan is procured, or "within forty days at the most," means forty days from the time that the loan is procured.12 A contract giving the purchaser of standing timber until the first day of June, 1898, to remove it, "with the privilege of another year if needed to remove" it, means a year from the first of June, 1898.13 In the absence of express statutory provision or of language in the contract which shows a contrary intention, performance on Monday is sufficient if by the terms of the contract the last day of performance falls on Sunday.14 Under a statute which defines the length of a month and makes specific provisions for counting days to determine the time of performance, if the contract is measured by months, and which contains no exception in case the last day of performance falls on Sunday, the courts can not add an exception in case the last day of performance falls on Sunday.15 If the day which falls on Sunday is not the last day of performance, but the day of performance from which certain specified days of grace are to be counted, the time for counting such days of grace begins with Sunday and not with the following Monday.16 A promise to pay or perform in a certain number of months prima facie means calendar months.17 An order, "one hundred and eighty days pay to the order of," is to be construed as if it were an order to pay one hundred and eighty days after date.18
1 Colorado. Jennings v. Brotherhood Accident Co., 44 Colo. 68, 18 L. R. A. (N.S.) 109, 96 Pac. 982.
Illinois. Merritt v. Crane Co., 225 111. 181, 80 N. E. 103.
Kentucky. Moreland v. Citizens' National Bank, 114 Ky. 577, 102 Am. St. Rep. 203, 61 L. R. A. 900, 71 S. W. 520.
Texas. Aetna Life Insurance Co. v. Wimberly, 102 Tex. 46, 23 L. R. A. (N.S.) 759, 112 S. W. 1038.
Utah. Board of Education v. Wright-Dsborn Co., 40 Utah 453, 164 Pac. 1033.
2 Preston v. Dunham, 52 Ala. 217; Massie v. Bel ford, 68 111. 290; Stevens v. Blunt, 7 Mass. 240; Coonley v. Anderson, 1 Hill (N. Y.) 519.
3 Elizabeth City Cotton Mills v. Dun-stan, 121 N. Car. 12, 61 Am. St. Rep 654, 27 S. E. 1001.
4 Adams v. Dale, 29 Ind. 273.
5 Wilson v. Bicknell, 170 Mass. 250, 49 N. E. 113; Mattison v. Marks, 81 Mich. 421, 18 Am. Rep. 197; Helmer v. Krolick, 36 Mich. 371.
6 Wilson y. Bicknell, 170 Mass. 259, 49 N. E. 113.
7 Richardson v. Ford, 14 111. 332.
8 Merritt v. Crane Co., 225 111. 181, 80 X. E. 103.
9 Board of Education v. Wright-Os-born Co., 49 Utah 453, 164 Pac. 1033.
10 National Wall Paper Co. v. Ins. Corporation, 175 N. Y. 226, 67 N. E. 440.
A provision for giving notice a certain time after physical disability has been said to date from the time that the insured learns that he is seriously ill, and not from the time that his sickness first began. Jennings v. Brotherhood Accident Co., 44 Colo. 68, 18 L. R. A. (N.S.) 109, 96 Pac. 982.
It is also said to begin from the date at which an attending physician is called in, if the policy provides that there can be no recovery thereon unless a physician is called in. Craig v. United States Health and Accident Ins. Co., 80 S. Car. 151, 18 L. R. A. (N.S.) 106, 61 S. E. 423.
Except in cases in which priority is dependent upon the exact moment of time at which rights vested or acts were done, the common law paid no attention to fractions of a day, but for legal purposes it regarded a day as a unit.19 If a contract provided for performance which is to extend over a certain space of time measured by days and the like, the common law did not count both the first and the last days in determining such period of time, nor did it exclude both, unless provision was made excluding both by language which showed such intention,20 such as by a provision for "clear days,"21 or by a provision for performance "between" certain dates.22 Whether the first day was included and the last day was excluded, or whether the first day was excluded and the last day was included, was a question which proved troublesome in the earlier cases which attempted to distinguish between different phrases to which the parties in all probability attached the same meaning. It was said in some cases that a provision for doing something within a certain time from an action or from the time of an act, showed an intention to include the first day and exclude the last day, even though a similar provision for performance after a given day required the exclusion of the first day and the inclusion of the last day.23 It was said that a provision for performing an act within a certain period "from date," included the first day, while a similar provision for performing such an act within a certain time "from the day of" the date, excluded the first day.24 It was said in words which were intended to pass a present interest, the words "from date" showed an intention to include the day of the date, while the same expression, if not intended to pass a present interest, excluded the day of the date.25 The distinctions which were thus built up did not correspond to the actual use of words by the community at large, and it was finally said that no sound distinction could be drawn between these different phrases.26