
    *Elisha Barrett v. Benjamin F. Allen.
    Where a note payable in specific articles falls due on Sunday, a tender on the Monday following is good.
    Where a note is payable in cloth, “ at a fair wholesale factory price,” parol evidence is admissible to show that a eertain scale of prices was intended different from tho actual wholesale prices in the market.
    This is an action of assumpsit from the county of Delaware.
    The case was submitted to a jury, on the last circuit, in the county of Delaware; but, by consent of counsel, a juror was withdrawn, the facts agreed, and the case submitted to the court to determine the questions of law.
    The declaration is founded on two promissory notes. They both bear date at Delaware, on October 30, 1827; and the defendant, by'tbe one contained in the first count, promises to pay, eight years after date, at the Delaware woolen factory, to E. Barrett, the nominal plaintiff, or order, $1,000 in woolen cloth, “at a fair wholesale factory price.” The other note declared upon in the second count is in the same terms and for the same amount, but payable nine years after date.
    The general issue is pleaded by the defendant, and two special pleas, which the counsel agreed should be considered, as a notice of special matter, in bar of the action. The first sets forth that before the commencement of the suit, to wit, on October 30, 1835, and the day on which the first note became due, at the Delaware factory, he, the defendant, was ready to pay said note, and did then and there turn out and tender the cloth that was then due on said note, and had the same appraised by disinterested men at $1,000 and upward, and boxed up for the said E. Barrett, being an amount sufficient to pay said note, at fair wholesale factory prices. The defendant also avers that he has at all times since the said October 30, 1835, had said cloth ready to be delivered to said Barrett, or any other person entitled thereto; *but no one has appeared to demand and receive the same, [427 and makes profert of it in court, etc.
    The second special plea avers a tender, in substantially the same words, to the other note, on October 30,1836, when it became due and payable as appeared upon its face.
    H. Stanbery, for the plaintiff
    The sufficiency of the tenderás contested by the plaintiff on the ground that the mode of valuation was incorrect; and further, as to the note due Oetober‘30, 1836, that the tender was notfin time.
    First, as to the question of time. The note bearing date October 30, 1827, and payable nine years after date, fell due October 30, 1836, which was Sunday. The cloth was not appraised and set apart until the next day.
    “ It is an unquestionable rule that a tender can not be made after the day of payment.” Swift’s Dig. 397; 8 Term, 188.
    It is true no one is obliged to perform an agreement on Sunday, but if the day of performance happen to fall on Sunday, the act must be done on Saturday. Kilgour v. Miles, 6 Gill & Johns. 268.
    If then a designation and setting apart of sufficient cloth to meet the note was necessary to the tender, it is clear the defendant was not in time.
    Was such designation necessary ? It is to be observed that we have, so far as the plaintiff is concerned, an executed contract. Nothing remained to be done by him in the way of condition precedent, or mutual. Is it enough that the defendant shows a mere ability to pay his note on the day it was due?
    Whether we regard this question at common law, or under our statute, some act of designation is clearly necessary.
    At the common law the setting.apart of the article was necessary to the performance of the contract, and amounted to a complete discharge. Co. Lit. 207, a ; Peyton’s case, 9 Coke 79, a. Chancellor Kent, 2 Com. 508, lays down the rule as follows: “If the debtor be present in person or by his agent, and makes a tender 428] of specific articles at the proper time and *place, according to contract, and the creditor does not come to receive them, the better opinion is, that if the article be properly designated and set apart, the debt is thereby discharged.”
    The case of Barney v. Bliss et al., Chip. (Vt.) 399, was an action of assumpsit on a note for the payment of 10,000 feet of lumber, on October 1, 1819. The plea stated that on the day mentioned in the note, the defendant had 10,000 feet of lumber prepared for the payment of the note, and that they were ready then and there to have paid the same, and that they were still ready, but the" plaintiff did not come to receive the same. The court held the plea bad, and that where the agreement was upon an executed consideration, the defendant must fehow an actual tender, or, at least, that the goods were set apart for the plaintiff upon his failure to attend and receive them, which would amount to a tender in law, and that he must make such designation of the article on the day and at the place of payment, as will transfer the property to the promisee and enable him to preserve the property itself.
    In 5 Johns. 119, the defendant made two notes to the plaintiff for ten dollars each, payable in produce at the defendant’s house. Upon the plea of payment the proof was, that the defendant had hay in his barn on the days the notes fell due, and was ready to pay in hay. The court held the tender insufficient, and that a declaration that there was produce in the stack or barn for the plaintiff, without ascertaining the amount and value, was insufficient.
    
      Our statute, as to the tender of specific articles, also contemplates a setting apart of the thing tendered, and only differs from the common law in requiring reasonable care of the article to be taken by the debtor.
    In every point of view some act of designation seems necessary, and it ought to be so distinct and explicit as to vest the property in the creditor, so that in the event of destruction by fire or other accident, it may be known whose property has been destroyed.
    *The propriety of such designation is especially manifest [429 in reference to a contract like the one at bar — to pay $1,000 in cloth on a day certain at the factory price. The act of tender ought to bo explicit and of mutual obligation, otherwise a temptation to fraud is offered to the debtor, as the market value of the cloth subsequently fluctuates. If, for instance, it suddenly depreciates, the debtor is interested to maintain the tender on the day when the price was high ; if it advances he is interested in keeping the cloth and paying the $1,000 and interest, which he may readily do if he is fixed by no overt'act of tender or designation.
    The next question is as to the sufficiency of the tender in amount, and applies to both notes. The quantity of cloth turned out on each note was much short of the value of $1,000 ; but by taking an artificial wholesale price then understood by the defendant and his workmen to be the wholesale price at that factory, the value was^ affixed. This mode of valuation is attempted to be sustained by proof that it was the sort of price which was understood by the parties at the time the notes were given — a trade price some twenty-five or thirty per cent, above the cash price.
    I suppose this note, so far as the value of the cloth is concerned, can have but one construction. It contains a promise to pay so much money in cloth at a lair wholesale factory price. This must be construed a money price. The $1,000, not $600 or $700, must be paid in cloth, and if the cloth be not paid the plaintiff must recover just so much money as the defendant has promised to pay. Where the parties omit to fix the value the law knows but one rule, and that is the cash value. But here the parties by their written contract have fixed the value; the promise is to pay $1,000 worth of cloth ; this written contract is set aside, if proof of an understanding that the cloth shall be worth a less sum is admitted.
    In Chipman on Contracts, pages 110, 111, it is said : “ When parties enter into contracts for produce, and have reference to the common going price, it is said, to estimate the property contracted 430] for at the cash price, would be doing injustice to ^debtors ; admit it to be so, yet it is impossible for courts to apply a remedy» the remedy is with the people themselves. If we set aside money as a standard, and substitute the common going price, it must» from the nature of the thing, be perfectly ideal.” “ There is but one course to bo.pursued, let money be the sole standard in making all contracts.”
    Sweetzer & Powell, for the defendant:
    When a note is made payable’in specific articles, at a given day and place, and in the computation of time it is found that the day of payment happens on Sunday, the defendant should tender performance on the Monday succeeding. Avery v. Stewart, 2 Conn. 69; Salter v. Bent, 20 Wend. 205 ; Luce v. Robinson, 4 Mass. 474; Sir Thomas Raymond, 418 ; Johnson v. Baird, 3 Blackford, 182 ; Douglass v. Phillips, 3 Term, 683; Chapman on Contracts, 108, 118.
    Where certain words are used in a contract in relation to a particular trade or custom, the court will admit extrinsic evidence, to show how the contract was understood by the parties at its inception. Chitty on Contracts, 19; Avery v. Stewart, 2 Conn. 69 ; Gleason v. Pinney, 5 Cowen, 152 ; Colt & Pierpont v. Commercial Ins. Co., 7 Johns. 385; Healed v. Cooper, 8 Greenleaf, 32; Williams et al. v. Gilman, 3 Greenleaf, 276; Chipman on Contracts, 29.
   Wood, J.

The plaintiff’s two notes, on which the suit is brought, are before us. On the part of the defendant, it is admitted that on October 30, 1835, he set apart at the Delaware factory a quantity of cloth, estimated to be worth $1,000, at the wholesale prices of that factory, and that on October 31, 1836, he set apart, from a large quantity previously set apart, at the same place, another quantity of woolen cloth, which, by estimate, at the same prices, also amounted to $1,0Q0-; that October 30, 1836, fell upon Sunday. That the cloth, so set apart and appraised, has been since carefully preserved, being intended for the payment of the two notes respectively. It is admitted also to be proved, that the wholesale 431] ^prices of the Delaware factory, as originally established, many years before the date of the notes, and while the factory was owned by Barrett, were graduated at a trade standard, twenty-five or thirty-three per cent, above the cash value; that they continued the same, and the cash value the same, at the time of the exccution of the notes, and when the notes became due. It is proved the notes were given in part consideration for the purchase of the Delaware factory, at an unusually high price, and that it was understood, at the time the notes were given, between the defendant and Barrett, that the wholesale prices of that factory, as they then existed, were to furnish the standard of the prices of the woolen cloths so to be delivered. There is other proof, but it is not necessary to notice it, as it can have no special influence on any question made by the parties.

Two questions are raised by the counsel, upon this proof. First, it is claimed that both the tenders were insufficient in the value or amount of cloth. Second, that the tender on October 31, 1836, is insufficient in point of time, being too late.

It is claimed by the plaintiff’s counsel, that the fair wholesale factory price, mentioned in the said notes, must be reduced to the cash standard, as the value of the property. If this be so, the tender is clearly insufficient in amount, by from twenty-five to thirty-three per cent. t

But is such the law of this case? We see nothing-improper in referring to extrinsic evidence, to ascertain what was the wholesale, fair, factory price intended by the parties. Two prices are clearly established, as well known at the factory, and to the parties. There is a latent ambiguity in the note, it specifies neither the one nor the other, and which did tho plaintiff and defendant intend? The witness has informed us. The defendant bought the factory at an extravagant price, and it was understood the plaintiff was to take his pay in cloth, at the high wholesale prices of the same factory, which ¡mices were established by the plai ntiff himself. If the law did not permit this, the most flagrant injustice would unquestionably *result. But we are not without authority which, upon [482 other grounds, renders it clear that this evidence was competent to ascertain what “ scale of price” the parties intended by which to ascertain the value of this property, in which the notes were to be paid. In the case of Avery v. Stewart, 2 Conn. 69, it was decided by the Supreme Court of Connecticut, that whore a note was made payable in cotton yarn, at the wholesale factory prices, that evidence of the usage of manufacturers and dealers in that article was admissible to show that by those-terms was meant a certain scale of prices, different from the actual wholesale prices in market. And if such were not the law, it is very clear, in this case, palpable injustice would be done. The evidence then shows, in amount, sufficient property was set apart. The next inquiry is, was the last tender too late ? October 30, 183G, when the note from its face fell due, was on Sunday. If these notes were mercantile paper, and the last day of grace was on Sunday, it is a settled rule, that it would fall due on Saturday, and demand of payment should be made on that day ; but in the same case of Avery v. Stewart, it was decided that where a promissory note, not negotiable, was made payable in sixty days from date, and it fell due on Sunday, that a tender on the Monday following was good. In a late case in New York, it was held, that when days of grace are not allowed, and the time for payment or performance specified in the contract falls on Sunday, the debtor may discharge his obligation on the following Monday. The court say they agree with Gould, J., that Sunday can not, for the purpose of performing a contract, be regarded as a day in law, and for that purpose should be considered as stricken from the calendar. 20 Wend. 206. The case of Avery v. Stewart is_ there commented upon and recognized as good law. We are disposed to yield to this authority, and it is decisive of the question in this case. This tender being in season, by which the property was sot apart and boxed up for the plaintiff, as upon the other note, the question does not arise, whether it would be a good defense for the defendant to prove he was at the place of payment, ready, willing, and with the ability 483] *to pay, but did not sot apart the property. If the defendant will give security, as the statuto requires, he may have judgment, otherwise judgment will be given for the plaintiff.

Lane, C. J., dissented on both points. 
      
      The note was in these words:
      ‘‘$1,000. “ Delaware, October 30, 1827.
      “ Eight years after date I promise to pay at the Delaware Woolen Eactory to E. Barrett, or order, one thousand dollars in woolen cloth at a fair wholesale factory price.”
     