Opinion
Argued November 20, 1882
Decided November 28, 1882
D.M. Porter for appellants.
Ira Leo Bamberger for respondent.
The only matter of difference between the parties at the interview on February 14, 1880, when the tender was made, related to the claim of the defendants to retain the bonds as security for the debt arising out of the stock transaction of January 16, 1880. This claim was untenable. The bonds were pledged specifically for the payment of the note of December 22, 1879, and the defendants acquired no right to retain them as security for a distinct and independent debt, in the absence of an agreement between the parties. When securities are pledged to a banker or broker for the payment of a particular loan or debt he has no lien upon such securities for a general balance, or for the payment of other claims. ( In re Medewe's Trust, 26 Bea. 588; Vanderzee v. Willis, 3 Bro. Ch. 21; Jarvis v. Rogers, 15 Mass. 389; Lane v. Bailey, 47 Barb. 395.)
The principal question in the case relates to the sufficiency of the tender of February 14, 1880, in respect to the note of December 22, 1879. The sum tendered was the amount of the principal of the note, and interest to the day of the tender. The note by its express terms was payable on that day. The defendants claim that the note was not then due, and that it did not mature until the expiration of the days of grace, and that the tender was therefore premature.
There is no doubt of the general principle that the tender of a debt before it is due is ineffectual. The debtor cannot be compelled to pay the debt before maturity, and the creditor is not bound to accept payment before that time. But the circumstances in this case are peculiar. Both parties, in respect to the tender, treated the debt as due when the tender was made, and the refusal to accept it was put by the defendants solely upon the ground that they were entitled to hold the bonds as security for the loss in the transaction of January 16, 1880.
It is unnecessary in this case to decide what the rights of the parties would have been if the defendants had refused to accept the sum tendered on the ground that the note was not due, or that the tender did not include interest on the note for the days of grace. But in view of the fact that days of grace were originally an indulgence accorded by commercial usage for the benefit of the debtor — although they have come to be regarded as part of the contract itself — we are of opinion that if the parties to a bill or note treat it as due on the day when by its terms it is payable, and a transaction at that time takes place between them, based on this assumption, and the rights of third persons have not intervened, the days of grace will be deemed waived, and the same legal consequences will follow as though the transaction took place on the day of the legal maturity of the paper. In this case the jury specially found that at the time of the tender, the defendants informed the plaintiff that the interest due was $82.44, and the tender included this amount for interest, and a few cents in addition. We do not sustain the sufficiency of the tender on the ground of estoppel, but on the broader ground that both parties assented to consider the note as then due, and that this as between them, effectually waived the days of grace. There is no foundation for the objection that the tender was made to Anthony, Poor Oliphant, and not to Anthony and Oliphant, the payees of the note. The firm of Anthony, Poor Oliphant owned the note when the tender was made, and besides the tender was in fact made to one of the original payees. The objection that Gilman was a joint owner with the plaintiff, of the bonds, and was a necessary party plaintiff, was taken in the answer and upon the trial. The jury expressly found that Gilman was not a part owner of the bonds, or of the cause of action. The claim that he was such joint owner is based upon proof of an agreement between the plaintiff and Gilman, that the latter should be interested in the profits and losses resulting from the purchase of the bonds. But the proof also justified the finding that by the same agreement, Wyckoff, who furnished the means to purchase the bonds, was to be the sole owner of the securities, and to have the exclusive right of possession, and that Gilman was acting simply as his agent. This excludes any inference that they were, inter se, joint owners of the bonds, and the defendants have no equity to place them in any other relation to each other than that which they themselves assumed.
There are several exceptions not here noticed but they present no serious question. We think there is no error disclosed by the record, and the judgment should therefore be affirmed.
All concur, except TRACY, J., absent.
Judgment affirmed.