Weld v. Barker

Citations

• 153 Pa. 465
• 26 A. 239
• 1893 Pa. LEXIS 1132

Syllabus

<p>Contract — Option—Computation of time.</p> <p>Plaintiff bought from defendant certain railroad bonds which by an agreement in writing were “to be held for one year, and not to be sold without the consent” of defendants. Plaintiff bound himself “to hold said bonds during the above period of one year,” and defendants bound themselves to repurchase the bonds at the option of plaintiff “ at the end of one year from the date of the contract.” The agreement was dated April 21, 1890. Held, that the “ one year from the date of the contract” was to be computed by excluding the day of the date, and that plaintiff’s option became exercisable on April 22, 1891.</p> <p>Contract — Waiver—Extension, of time.</p> <p>Under the above agreement, plaintiff, on April 22, 1891, notified defendants that ho availed himself of the option to resell to them the bonds. In the meantime defendants had made an assignment for the benefit of creditors, and their assignee acknowledged the receipt of the notice and that plaintiff had tendered the bonds “ in accordance with the provisions of said recited agreement.” On Dec. 8, 1890, plaintiff joined with other creditors in granting an extension of “ the time for the payment of all debts due ” by defendants for one year from January 1, 1891. The agreement of extension contained no reference to plaintiff’s option to resell the bonds. On -Jan. 2, 1892, plaintiff again notified defendants of his desire to exercise his option.</p> <p>Held, in an action to recover the price of the bonds, (1) that the assignee’s acknowledgment of the first notice was insufficient to prove a waiver as to time.; (2) that it is doubtful if the agreement for an extension applied to the option, and (3) even if it did it contained no waiver of the effect of the demand.</p> <p>Affidavit of defence — Affirmation on information and belief — Custom.</p> <p>In the above case, defendants filed an affidavit of defence in which they averred “ on information and belief that there is a g