Opinion
(December Term, 1857.)
A bond to pay a certain sum on or before a certain day for a gold-mine, with a condition to the effect, that "should the mine prove valueless, the bond to be null and void, otherwise of full effect," was Held to become absolute on the day named for payment, unless it had been ascertained before the day that the mine was valueless, and it was error to admit evidence of tests and examinations made after the day fixed for payment.
THIS was an action of DEBT, tried before MANLY, J., at the last Fall Term of Guilford Superior Court.
McLean and Fowle, for the plaintiff.
Gorrell, for the defendant.
The plaintiff declared on the following bond:
"$150. On or before the 25th of December next, I promise to pay John E. Gamble, the sum of one hundred and fifty dollars, for value received of him. The condition of the above obligation is such, that should the mining interest of the James White tract of land, this day bought by me, prove valueless, it shall be null and void; otherwise of full effect. July 5th, 1853." J. W. BEESON, [seal.]
The defendant proposed to show by tests and working of the mine after the 25th of December, 1853, that the said land was valueless for mining purposes; which testimony was objected to by the plaintiff, but admitted by the Court; for which plaintiff excepted.
Verdict for the defendant. Judgment and appeal.
The time at which the tests and examinations were to be made, in order "to prove the mine valueless," is not expressed in the condition, and the question is, within what time was the test to be made? We think, according to the proper construction of the instrument, it was to be done "on, or before," the 25th of December, when the money was to be paid.
Suppose the money had been paid on the 25th of December, and afterwards, the mine, being tested, proved valueless, could it have been recovered back? If so, after what length of time? It is certain it could not have been recovered back. The legal effect of the bond was to impose on the defendant the duty of seeking the plaintiff and paying the money to him on that day. He was in default for not having done so. Shall he be allowed to take advantage of his own wrong, for the purpose of extending a condition which was made for his benefit? Such would be the effect, if he could avail himself of a test made after the day on which he was bound to pay the money. So, we conclude the bond became absolute on that day. Such was the object and intent of the parties.
The counsel for the defendant, being pressed by the argument, that if that day was not the limit of the time, after that it would be indefinite, suggested that the proper limit was the bringing of the action.
We can see no reason upon which this proposition can be supported. The defendant was in default by not paying the money on the day the bond became absolute. No laches can be imputed to the plaintiff for not suing forthwith, and if he chose to give indulgence, relying on the bond as an absolute security, an attempt to keep the condition open on that ground, comes with an ill-grace from the defendant. His default was aggravated by not paying the money until the plaintiff was forced to sue him.
We have treated the case as if the evidence was offered to support the allegation that the mine proved valueless after the day, because that was the point presented in the argument, and not as if it was offered for the purpose of reflecting back in aid of tests previously made, so as to support an allegation that the mine had proved valueless before the day.
PER CURIAM, Judgment reversed, and a venire de novo.