Opinion
09-21-1888
WARNE et ux. v. WAGENOR.
J. G. Shipman & Son, for motion. S. C. Smith and W. H. Morrow, contra.
Bill for relief. On motion to dismiss injunction bill.
J. G. Shipman & Son, for motion. S. C. Smith and W. H. Morrow, contra.
BIRD, V. C. This bill sets up that Mark T. Warne, as agent, on the 1st day of November, 1881, entered into a lease with one Amy, in and by which Amy demised to him, for the term of 20 years, the privilege of entering upon two tracts of land, and to search for and mine and carry away therefrom soap-stone, talc, magnesian carbonate of lime, quartz, etc.; for every ton of which he was to pay 30 cents, in quarter yearly payments. It was one of the termsof the lease that Warne might terminate it at any time on giving 30 days' notice in writing. Another provision of the lease was that a refusal on the part of Warne to comply with the terms of the lease "might be held as a termination of the same at the option of the party of the first part (Amy) after due notice to be given, say thirty days." Warne entered on the demised premises, opened valuable mines, and removed a large quantity of soap-stone and other stone, and has manufactured the same into clay and pulp, and has supplied the markets of the country therewith, thereby establishing a large and profitable business. It is alleged that, in the management of this business, Warne has invested $20,000 of his wife's money, and for her. The nature of the business and the amount involved had not a little to do with leading me to the conclusion that the complainants were entitled to the aid of this court by injunction. I was impressed with the conviction that Wagenor regarded Warne as a trespasser, and that he intended to treat him accordingly, and that, if he should do so, he had it in his power to effect such irreparable injury to Warne as to make it the plain duty of equity to prevent. The facts which awakened this conviction (however slight they may be regarded) will appear as we progress. June 1, 1887, Amy conveyed all of his interests in the said premises to Wagenor, this defendant, who took with notice of the rights of the complainants. Warne and Wagenor agreed that the payments for ore should be considered due and payable on the first day of January, April, July, and October of each year. According to this agreement, one quarter's royalty came due on Sunday, the 1st day of April, 1888. On the next day Warne offered to pay the same by his check. He had before made his payments by check to Wagenor. But on this occasion Wagenor refused to receive the check, saying, "It is too late," and insisting that the lease was forfeited, because payment had not been made the day before, but making no objections that the offer to pay was not made in legal tender. The next day Warne procured the amount of the royalty then due, in legal tender, and sought to find Wagenor, for the purpose of tendering it to him, but was unable to find him until the day following, the 4th of April, when such legal tender was offered to him, and when he again refused to accept. The complainants now bring the money into court. The bill alleges that Wagenor claims that, because the royalty was not paid on the 1st day of April, although that was Sunday, all of the rights which the complainants otherwise had, under the lease, have been forfeited; and that said Wagenor pretended to exercise the option which the lease gives to him, in case of forfeiture, by serving a notice in writing on the complainants that the lease was terminated, because Warne had refused to comply with its terms in the payment of the royalty, and because the weighing had not been ascertained in a just and fair manner. The notice concluded with these words: "And I hereby notify you to leave the said premises within thirty days, or I shall consider you a trespasser." Before the expiration of the 30 days the complainants file their bill, and besides the foregoing allege that Wagenor threatens to dispossess them, and in fact to treat them as trespassers.
The principal ground on which this motion rests is that there is no equity in the bill. Hence the question: On what allegations in the bill does the pleader rely for equitable recognition? There are at best only two: (1) the allegation that Wagenor claims that the lease has been forfeited by the non-payment of the royalty; and (2) the threat that he will dispossess the complainants. It must appear that there was a forfeiture. If no forfeiture appears, there can be no relief on this branch. Was there a forfeiture because of the non-payment of royalty on Sunday? Surely it is not the simple declaration, of the party claiming the benefit of the forfeiture, that there has been such forfeiture, that will give jurisdiction to equity. There must be some fact for the declaration to rest on. It should appear that the complainant has failed to do some thing that he was under obligations to do but for the omission of which he presents a justifiable excuse,—an excuse which satisfies thecourt as sufficient to bar the forfeiture. Was the non-payment of the royalty on Sunday a forfeiture? The law does not recognize Sunday as a day for the transaction of ordinary worldly affairs. It has no existence in the legal calendar, in the computation of time, when it happens that parties have agreed that certain acts shall be performed on a day which, perchance, falls on a Sunday. It appears to me much more reasonable to hold that Monday should take the place of Sunday than to compel the party under obligation to anticipate events, and to tender performance on Saturday; for he has not agreed to perform any duty on Saturday, and this the other side well knows, as he also well knows, that in all such cases Sunday is a dies non. Although I had supposed that this question had been thoroughly discussed and definitely settled, to my surprise I find it has been before the courts of this state for adjudication but once. This surprise, however, is overcome by the satisfaction derived from finding that a most careful and experienced chief justice treated the case as though the law was well settled. I refer to the case of Stryker v. Vanderbilt, 27 N. J. Law, 68. The litigation in that case arose on the failure of a purchaser to accept a deed tendered to him on Monday, the 2d day of May, when, by the terms of the sale, the deed was to have been delivered on the 1st day of May, which was Sunday. The court said: "The 1st day of May falling on Sunday, compliance with the contract on Monday was a legal performance." In Saiter v. Burt, 20 Wend. 205, the court said: "When the day of the performance of a contract, other than instruments on which days of grace are allowed, falls on Sunday, the day is not counted, and compliance with the stipulations of the contract on the next day is deemed in law a performance." 32 Amer. Dec. 530; see note on 531; Bank v. Varnum, 49 N. Y. 279; Awry v. Stewart, 2 Conn. 69; 7 Amer. Dec. 240. In this case a non-negotiable promissory note which, by its terms, fell due on Sunday, was, by a divided court, held to be payable on the following Monday. It will be seen, by reference to a note appended to this case, in the book last cited, that all of the courts in this country do not subscribe to this doctrine. But, however this may be as to the courts of other states, I am relieved from all responsibility, since I find the law settled in New Jersey, and that too in the courts of law, so that the complainants can be protected against this alleged forfeiture in those courts. Therefore, to the extent of the alleged forfeiture for non-payment of royalty, I think the motion to dismiss well founded.
But does the other ground of forfeiture mentioned in the notice from Wagenor raise any question for equitable consideration? The notice is that the "weighing has not been ascertained in a just and fair manner." I am unable to see that this affords any ground for the bill to rest on. The branch of the case first considered seemed to me to come within the rule governing the court in such cases. It there appears that the complainants came in and said that they had not paid according to the terms of their agreement, on the day specified therein, because that day was Sunday, but that they had tendered performance on the next day, which tender was rejected by the defendant, who claimed that the complainants had forfeited all rights under the lease; upon which the complainants say that, if such failure be a forfeiture, it is only a technical one, and that they are entitled to relief against it in equity. Now, there was something there for the court to go upon; that is, the partial admission of a forfeiture according to the strict rules of law, and the reasons for the interposition of this court. But nothing of the kind appears in the other branch of the notice and the allegations connected therewith in the bill. So far as anything is alleged on this head, it utterly denies that the weighing has not been in a fair and just manner. Therefore, how can the court enjoin the enforcement of a forfeiture at law, when there is nothing in the pleadings to show to the court that there has been a forfeiture, except the declaration of the defendant, which is positively denied by the complainants? It strikes me that in such cases there must be something in the nature of a plea of confessionand avoidance; as in the case of the failure of the mortgagor to pay interest according to the contract, whereby the whole amount of principal falls due, and his right to further time is forfeited, unless the mortgagee, by some act, waives his right to urge the forfeiture; in which case, should the mortgagee proceed, on the ground of forfeiture, the mortgagor would answer and admit the forfeiture, but would also set up the act of the mortgagee, which constituted the waiver; thus making a case within the reach of the courts of equity. But if, in such case, the mortgagor were to come in with a prayer for injunction against the mortgagee, restraining him from bringing suit on the bond, and were only to assert that the mortgagee had declared that the right to further time had been forfeited, and then only to go so much further as to deny the truth of that declaration, and thereupon to insist that there had been no forfeiture, certainly no foundation would be laid for equitable action on the face of the record. It is my judgment that the case I am dealing with is no stronger than the illustration. I do not forget that counsel laid great stress on the expressed determination of Wagenor to insist on the forfeiture; but that intention cannot fortify the case for the complainants, since, so far as there is any forfeiture, it can be defended against at law. But, under this head, counsel contends that the intention of Wagenor, as expressed in the notice, involved the determination to take possession of the mine by force, or stealthily to secure the possession, and then by force to retain it against the complainants. The answer to this is that the notice does not so read, neither can it be inferred from its terms; and, in the absence of plain facts to the contrary, the court is bound to presume that every citizen will observe the law. But if, after all, there be a secret intention to secure the possession of this mine, without violence, and thereby deprive the complainants of all their rights and of the business which has been established, and an unmistakable demonstration should be made to that end, then will be the time to ask for equitable aid, provided irreparable mischief is likely to follow. I will advise an order dismissing the bill and dissolving the injunction, with costs.