§ 1328. When there is any uncertainty as to whether the time allowed is to be inclusive or exclusive of particular days stated in the contract, the question must be determined by the agreement of the parties, according to the common rules of interpretation.1 Where a month is agreed upon as the time within which, or upon the expiration of which, a contract shall be performed by the common law, the presumption is, unless the circumstances of the case indicate a different conclusion, that a lunar month is intended.2 But in cases of negotiable paper, and indeed of commercial contracts in general, a month is considered to be a calendar month.3 Again, where a conthat the condition that the work shall be done in a proper and workmanlike manner, is of that nature, that is a condition which is implied in every contract of the same kind; and if it were a condition precedent to the plaintiff's remuneration, a little deficiency of any sort would put an end to the contract, and deprive a plaintiff of any claim for payment; but under such circumstances, it has always been held that where the contract has been executed, a jury may say what the plaintiff really deserves to have. If it be said that the completion by the 10th of October is the condition precedent, at least the objection should have been taken at the time; in accepting the work done, the defendant admits that it is of some benefit to him, and that the plaintiff is entitled to some remuneration. It is not a condition, but a stipulation, for non-observance of which the defendant may be entitled to recover damages; but even if it be a condition, it does not go to the essence of the contract, and is no answer to the plaintiff's claim for the work actually done. It never could have been the understanding of the parties, that if the house were not done by the precise day, the plaintiff would have no remuneration; at all events, if so unreasonable an engagement had been entered into, the parties should have expressed their meaning with a precision which could not be mistaken."
1 See Pugh v. Duke of Leeds, 2 Cowp. 714; Watson v. Pears, 2 Camp. 294.
2 Story on Bills of Exchange, § 143, 330; 4 Kent, Comm. lect. 50, p. 95, note (b), 4th ed.; Jolly v. Young, 1 Esp. 186; Titus v. Lady Prestou, 1 Str. 652; Lang v. Gale, 1 Maule & S. 1ll; Barksdale v. Morgan, 4 Mod. 185; Jocelyn v. Hawkins, 1 Str. 446. In America, the computation has, however, generally been by calendar, and not by lunar months, in common contracts and in statutes. See Kent's Comm. and Story on Bills of Exchange, cited above; Hunt v. Holden, 2 Mass. 170; Avery v. Pixley, 4 Mass. 460.
3 Story on Bills of Exchange, § 143, 330; Lang v. Gale, 1 Maule & S. 1ll; Cockell v. Gray, 3 B. & B. 187; Leffingwell v. White, 1 Johns. Cas.
§ 1329. The rule as to the time and place of performance was recently thus laid down by Baron Parke:6 "A party who is by contract to pay money or to do a thing transitory to another, anywhere, on a certain day, has the whole of the day, and, if on one of several days, the whole of the days, for the performance of his part of the contract; and until the whole day or the whole of the last day has expired, no action will lie against him for the breach of the contract. In such a case the party bound must find the other at his peril,1 and within the time limited, if the other be within the four seas;2 and he must do all that, without the concurrence of the other, he can do to make the payment or perform the act, and that at a convenient time before midnight, such time varying according to the quantum of the payment or the nature of the act to be done. Therefore, if he is to pay a sum of money, he must tender it a sufficient time before midnight for the party to whom the tender is made to receive and count it; or, if he is to deliver goods, he must tender them so as to allow sufficient time for examination and receipt. This done, he has, so far as he could, paid or delivered within the time; and it is by the fault of the other only that the payment or delivery is not complete. But where the thing to be done is to be performed at a certain place, on or before a certain day, to another party to a contract, there the tender must be to the other party at that place; and as the attendance of the other is necessary at that place to complete the act, there the law, though it requires that other to be present, is not so unreasonable as to require him to be present for the whole day where the thing is to be done on one day, or for the whole series of days where it is to be done on or before a day certain, and therefore it fixes a particular part of the day for his presence; and it is enough if he be at the place at such a convenient time before sunset on the last day that the act may be completed by daylight; and if the party bound tender to the party there if present, or, if absent, be ready at the place to perform the act within a convenient time before sunset for its completion, it is sufficient; and if the tender be made to the other party at the place at any time of the day, the contract is performed; and though the law gives the uttermost convenient time on the last day, yet this is solely for the convenience of both parties, that neither may give longer attendance than is necessary; and if it happens that both parties meet at the place at any other time of the last day, or upon any other day within the time limited, and a tender is made, the tender is good.1 This is the distinction which prevails in all the cases, - where a thing is to be done anywhere, a tender a convenient time before midnight is sufficient; where the thing is to be done at a particular place, and where the law implies a duty on the party to whom the thing is to be done to attend, that attendance is to be by daylight, and a convenient time before sunset." Where, therefore, an action of assumpsit was brought for not accepting ten tons of linseed oil, delivered at nine o'clock at night on the last of fourteen days specified as the period within which it should be delivered, it was held that the tender was good in point of time, and consequently that the plaintiffs having been able to meet with the defendant and actually to tender the oil to him a sufficient time before midnight to enable the latter to receive, examine, and weigh the oil, they had performed as far as they could their part of the contract, and were entitled to recover for the breach of it by the defendant.2