
    Francis Pares Osborn et al., App’lts, v. William C. Rogers, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed March 5, 1889.)
    
    Contract—Construction of—Bills and notes—Stipulation.
    The defendant, to stay further proceedings in an action upon an account stated, wherein he had failed to answer, gave, and the plaintiff accepted, promissory notes payable at different times, in all amounting to the sum claimed, and a stipulation entitled in the action was executed between the parties, wherein, after reciting these facts, they agreed that if the defendant shall pay each of said notes promptly at the maturity thereof then no judgment shall be entered in this action, but in case the defendant shall make default in the payment of any one of said notes, according to its terms, then immediately upon such default the plaintiff shall be at liberty forthwith to enter judgment by default in this action, and to issue execution for the amount remaining unpaid, etc. The fifth note recited -x -x * without grace, on October 17, 1887, after date I promise to pay, * * * at the Tradesmen’s National Bank. * * * Held, that the omission to pay the amount of said note at the bank, in banking hours, ■on the 17th of October, 1887, was a “default in payment,” and consequently a breach of the contract embraced in the stipulation, and relieved the plaintiffs from it, and the plaintiffs were entitled to enter judgment immediately after three o’clock on the said seventeenth of October.
    Appeal from a judgment of the supreme court, general term, first department, reversing an order of the special term denying a motion to set aside a judgment and ■execution.
    
      Frederick B. Ooudert, for app’lts; Adam O. Filis, for resp’t.
    
      
       Reversing 16 N. Y. State Rep., 964.
    
   Danforth, J.

Defendant moved at special term that the judgment in this action and the execution for its enforcement be vacated. The motion was denied. Upon .appeal the judges at general term differed, but a majority favored reversal, and from the order of reversal the plaintiffs appeal to this court.

The action was upon an account stated for the sum of :$8,678.87. The defendant failed to answer, and to stay further proceedings gave and the plaintiff accepted promissory notes payable at different times, in all amounting to the sum claimed, and a stipulation entitled in the action was executed between the parties, wherein after reciting these facts they agreed that if the defendant shall pay each ot said notes promptly at the maturity thereof, then no judgment shall be entered in this action; but in case the defendant shall make default in the payment of any one of said notes according to its terms, then immediately upon such default the plaintiffs shah be at liberty forthwith to enter judgment by default in this action, and to issue execution for the amount remaining unpaid as principal and interest of said notes. The first four notes were paid; the fifth was in these words :

$517.51. New York, March 18, 1887.
Without grace on October 17, 1887, after date I promise to pay to the order of myself five hundred and seventeen and 51-100 dollars at the Tradesmen’s National Bank. -
W. 0. ROGERS.
Value received.
No.-. Due October 17, 1887.
Indorsed: W. 0. Rogers.

At maturity and within the usual banking hours, it was presented by the plaintiffs at the bank for payment, but payment was refused. Shortly after banking hours payment was demanded by a notary, and being again refused, the note went to protest in the usual manner. Immediately after and on the same day the plaintiffs entered up judgment in the action for the sum remaining unpaid. It was objected for the defendant that the entry of judgment was irregular, as the day on which the note was payable had not expired; In support of this contention the learned counsel for the defendant refers to The Continental Bank v. Townsend (87 N. Y., 8) and Smith v. Aylesworth (40 Barb., 104). In the first it was said to be the rule in this state that the maker of a' note has the whole of the last day of grace in which to pay, and consequently a transfer at any time on that day was before maturity. The case from the supreme court (40 Barb., supra) is to the effect that an action commenced upon a note after its dishonor at. bank and during the same day was prematurely brought.

The question, however, which these cases answer is not the one before us, nor are the decisions at all material in the present controversy. That depends upon the true construction of the stipulation. So long as the defendant kept within its terms the plaintiffs were stayed from proceeding in the action. The moment he made default and failed to perform his part, the plaintiffs were let loose. What was his contract ? To pay the note according to its terms, and the only obligation of the plaintiffs in respect thereto was to receive the money specified in the note at the time and at the place therein mentioned. No term growing out of the law merchant or custom, or from any source, can be implied into the stipulation. If other terms, under any circumstances, can be so gathered, they must be deemed excluded by the stipulation, for it refers simply to the terms expressed in the note, and makes the omission to observe and keep any one of those terms a default, upon the happening of which the plaintiffs are at liberty to proceed and enter judgment.

Among other terms we find a place of payment mentioned, viz., The Tradesmen’s National Bank.” Payment, therefore, to be effectual for the purpose of the agreement, must be performed at the place appointed by the agreement. It was not so performed.

The real question is still narrower. The defendant says, by the law applicable to promissory notes, the maker has the whole day within which to pay, and therefore the plaintiff should have waited until the end of it. In other words he says, although I did not perform my contract, you were bound to observe the law which extends the privilege of payment beyond bank hours, and to a different place. Assuming that to be so, it is only against an action brought upon the note that the privilege is availing. If payment of a, note might still be made within the day, non-payment on presentment is a dishonor, and a notice given on that day and immediately after that dishonor is not too soon. Burbridge v. Manners, 3 Campbell, 194; Corp v. McComb, 1 John. Cas. 329; Youngs v. Lee, 12 N. Y., 551. The maker not paying, was in default. Here there is no action upon a note. There was no substitution of the notes for the account stated, or novation of any kind. The defendant agreed to pay at a place stated and at a time stated, and as he was to pay at a bank, so the time of payment was necessarily limited to the hours within which the bank in the due course of its usual business was open to receive payment. Bank of Syracuse v. Hollister, 17 N. Y., 46. That was the agreement made by the parties, and the court cannot make another for them.

The defendant, in substance, said: “If you will suspend your suit until October seventeenth, I will meet you at the bank on that day between the hours of ten and three, and there pay that portion of the money you require. If I do not, you can proceed in the action.” I suppose no one would doubt that upon default of defendant in so doing, the plaintiffs might immediately, after the hour of three, enter their judgment. In the actual and in the supposed case, the question was one of forbearance. There is no greater uncertainty as to time of forbearance in one case than in the ether, and it seems to me there is no more justice in implying a different time in one case than the other. Omission to pay at the bank was a “ default in payment,” and consequently a breach of the contract embodied in the stipulation, and the plaintiffs were relieved from it. We agree, therefore, with the special term that the entry of judgment was regular, and should stand.

The order of the general term is- reversed, and that of the special term affirmed, with costs of appeal in all courts.

All concur.  