IN THE KING'S BENCH. LANG AND ANOTHER, ASSIGNEES OF BAZELEY, A BANK- (1 M. & S. 111–118.) The word "month" may mean lunar or calendar month, according to the intention of the contracting parties: therefore, where, upon a sale of land on the 24th of January, it was agreed by the conditions of sale that an abstract of the title should be delivered to the purchaser within a fortnight from the date thereof, to be returned by him at the end of two months from the said date, and that a draft of the conveyance should be delivered within three months from the said date, to be redelivered within four months from said date, and the purchase to be completed on the 24th of June, making a period of precisely five calendar months from the date of the sale and conditions, the word "months" was held to mean calendar and not lunar months, by reference to the whole period fixed for the completion of the contract. The condition for delivery of the draft of the conveyance within three months was not a condition precedent with respect to its delivery within the precise time. : 1813. Feb. 4. [111] ASSUMPSIT. The declaration stated, that Christopher Savile was seised in fee of a messuage with the appurtenants, situate at Oakhampton, in the county of Devon, as mortgagee thereof, subject to redemption by *the plaintiffs as assignees of Bazeley, on payment of [ *112 ] 700l. and interest: that the plaintiffs were entitled to the equity of redemption, and the premises were in the occupation of Bazeley that Savile and the plaintiffs being so seised, on the 24th of January, 1811, exposed the fee simple of the premises to sale by auction on the following terms: (inter alia) That an abstract of the title should be delivered to the purchaser within a fortnight from the date thereof, and if he should think proper to take counsel's opinion, or compare the abstract with the title deeds, he should be at the expense thereof, and should return the abstract with or without his approbation at the end of two months from the date thereof; that a draft of the conveyance should be delivered to the purchaser or his attorney within three months from the date thereof; and should be delivered to Mr. Collins within four months from the date thereof; and that the remainder of the purchase-money should be paid on the 24th of June then next, when the purchaser should receive his conveyance duly executed by all parties, to be prepared by Mr. Collins at the expense of the purchaser. That the purchaser should be in the perception of the rents and profits of the premises from the 24th of June, on payment of the remainder of the purchasemoney, and not otherwise: that if the purchaser should neglect to comply with all or any of the conditions, the deposit-money should be forfeited, and the sellers at liberty to resell the premises, &c. The declaration then stated that, by agreement in writing between (1) Cited, Bruner v. Moore [1904] 1 Ch. 305, 310, 73 L. J. Ch. 377; R.R.-VOL. CXLIX. Helsham-Jones v. Hennen & Co. LANG v. JALE [ *113 ] [114] the plaintiffs and the defendant, the defendant agreed to purchase the premises at the price of 1,450l., subject to the said conditions ; and the plaintiffs agreed to sell the same to him at the said price, and on the same conditions. It then *averred mutual promises of performance, and that afterwards within a fortnight from the date of the said conditions, an abstract of the title of the plaintiffs and Savile to the premises was delivered by the plaintiffs to the defendant, and afterwards, within three months of the date of the conditions, a draft of a proper conveyance of the premises was delivered by the plaintiffs to the defendant's attorney: and the plaintiffs went on to aver that from thence until and on the 24th of June they were ready and willing to have performed the rest of the conditions on their part to be performed, of which the defendant had notice. The breach assigned was, that the defendant, after the delivery of the draft, and before the 24th of June, by his attorney returned the same; and on the 24th of June refused to complete the purchase, &c. The defendant pleaded the general issue. At the trial, before Chambre, J., at the last Assizes at Exeter, it appeared that the premises were sold by auction to the defendant on the 24th January, 1811, at the sum of 1,450l. who then subscribed his name to the contract; that on the 7th of February following, an abstract of the title was delivered to him, which after some hesitation he received, and which being returned on the 9th by the defendant's attorney, with an indorsement made thereon, a fuller abstract was furnished him. The draft of the conveyance was delivered on the 24th of April, 1811; and on the 30th the defendant declared that he would have nothing to do with the contract, and was unable to perform it. It was objected that the plaintiffs could not maintain the action, not having complied with the terms of the conditions, by delivering the draft of the conveyance within the time stipulated; viz. three months from the date, which date was the 24th of January. The delivery was on the 24th of April, three calendar months after the date; but it was contended, that the computation was to be made by lunar months. This objection was saved for the opinion of the Court, subject to which a verdict was given for the plaintiffs. Pell, Serjt., accordingly, in the last Term, obtained a rule nisi for entering a nonsuit. Lens, Serjt., and Bayley, now showed cause; and admitted the general rule that in legal proceedings the term "month" is to be intended lunar and not calendar; the reason of which is this, that the common law computes time according to the lunar month; but in ecclesiastical matters the computation is by the calendar month; and, therefore, where a statute speaks of six months, in a matter which concerns ecclesiastical proceedings, it shall be computed by calendar months (1), and so the words "tempus semestre" in the Statute of West. 2, c. 5, concerning quare impedit were computed (2). This shows that the word "month" may be understood either as lunar or calendar, according to the subject-matter to which it refers, or the understanding of the parties using it. [They also cited Hall v. Cazenove (3).] Pell, Serjt., and Gifford, contrà. LE BLANC, J. (4): LANG v. GALE. [115] [117] Several points have been agitated in the discussion of this case: but I do not feel it necessary to go into all of them, because, upon the first, the Court are clearly of opinion in favour of the plaintiff. I allude to the point respecting the time within which the draft of the conveyance was agreed to be delivered to the purchaser. It is very true, as has been stated, that in matters temporal the term "month" is understood to mean lunar month, whilst in matters ecclesiastical it is deemed calendar, because in each of those matters a different mode of computation respectively prevails: the term, therefore, is taken in that sense which is conformable to the subjectmatter to which it is applied. Still in matters of contract the question will ever be, what was the intention of the contracting parties at the time when they made use of the word. Looking at this case, I think the parties clearly had in their contemplation calendar and not lunar months. The date of the sale is the 24th of January, and the conditions provide for the delivery of an abstract of the title to the purchaser within a fortnight from that date, which is to be returned by him at the end of two months. The draft is then stipulated to be delivered within three months, which is to be re-delivered to Colling within four months, and final payment to be made on the 24th of June following. This completes a period of exactly five calendar months from the date of the sale; and shows clearly that the parties had in their contemplation, in the prior limitations of two, three, and *four months, the same respective portions [*118 ] of time as in the ultimate limitation, which is calendar and not lunar months. As to the other point, it is clear that it is a condition precedent that a draft of the conveyance should be delivered to the purchaser: the question is, whether it must be done by a particular day. It is not necessary, however, to enter upon that question; if it were, it might perhaps be material to advert to the rule that where a condition does not go to the whole consideration (5) of the contract, but to a part only, it is not a condition precedent. (1) Copley v. Collins, 2 Roll. Abr. 521, 51; Hob. 179. (2) Catesby's case, 6 Co. Rep. 61. (3) 7 R. R. 611 (4 East, 477). (4) Lord ELLENBOROUGH, Ch. J. was absent. (5) See Havelock v. Geddes, 10 R. R. 380, 387 (10 East, 555, 564). GALE. 1834. [304] [ *305 ] I am of the same opinion upon both points. It was not a condition precedent that the draft should be delivered by a particular day; for I do not consider the precise time of the delivery as an essential ingredient in that condition, which was meant only to secure a delivery within a reasonable time. Upon the other point it seems to me, on referring to the particulars of sale, that months were intended as calendar months; and this construction is a beneficial one for the defendant, for by the conditions he is allowed two months for examining the abstract, and one for the draft of the conveyance; therefore, by construing them calendar, the time allowed him is enlarged beyond the period of lunar months. LEESON v. SMITH (1). (4 Nev. & Man. 304-306.) Rule discharged. In order to take a case out of the Statute of Limitations a payment of 128. as interest money was proved: This does not justify a verdict finding a debt of 137. 168. A verdict for nominal damages only could upon this evidence have been sustained, semble. Where upon showing cause against a rule for a nonsuit or new trial, it appears that the verdict has been entered for an amount not warranted by the evidence, the Court will make the rule absolute, unless the parties consent that the damages shall be reduced. ASSUMPSIT for money lent, and interest. By the particulars annexed to the record the money (15l. 12s.) appeared to have been lent more than six years before action brought, and credit was given for two payments of interest within the six years. Pleas: 1st, the general issue; 2nd, actio non accrevit infra sex annos. At the trial before the Under-sheriff of Derbyshire, September 1, 1834, the plaintiff's niece gave the following evidence: "The plaintiff sent me, in September, 1829, to ask him for his interest money; *I delivered the message to the defendant. He gave me 12s. ; I gave the 12s. to my uncle." On cross-examination the witness said, that she merely asked the defendant for her uncle's interest money, and that the defendant did not tell her anything about it. John Leeson, the plaintiff's brother, gave evidence as follows: "I met the defendant last Christmas; I said, 'Thomas, my brother James wants to see you; he begins to think you long.' The defendant said: 'I should have been there before now if I had anything to come with, but times are hard with me. I was rearing a beast towards it, but I have had the bad fortune to lose it.'" This was the whole of the evidence for the plaintiff. It was contended on the part of the defendant that there was no evidence to go to the jury of the (1) Cited, Watt v. Watt [1905] A. C. 115, 122, 74 L. J. K. B. 438, 92 L. T. 480. existence of any debt, and that the plaintiff ought to be nonsuited. The under-sheriff told the jury that there was no distinct proof of any debt, that John Leeson's evidence was inadmissible to take the case out of the Statute of Limitations,-but that they might consider how far the payment of 12s. for interest afforded an inference that there was a then existing debt. The jury found a verdict for the plaintiff for 137. 16s. In the course of this Term, Hughes obtained a rule nisi for a nonsuit or a new trial, on the ground of misdirection, and of the verdict being against evidence. N. R. Clarke now showed cause: The evidence was sufficient to take the case out of the statute, since it was an admission of a debt upon which interest to the amount of 12s. was due. Hughes, contrà: It lay upon the plaintiff to take the case out of the statute. The evidence was not sufficient enough for that purpose. The evidence of John Leeson was inadmissible; for by Lord Tenterden's Act (1) every acknowledgment or promise, to take a case out of the statute, must be in writing and signed by the party chargeable thereby. *The evidence of the first witness was too vague and uncertain to be left to the jury. Every acknowledgment, to take a case out of the statute, ought to be an admission of the existence of a certain amount of debt, that amount to be either specified or to be capable of being clearly deduced by calculation. * Supposing it should be held that there was in this case a sufficient acknowledgment of a debt of some unascertained amount, the plaintiff could be entitled at most to nominal damages only. LORD DENMAN, Ch. J.: It is clear that the verdict is at all events [for] far too much: we cannot however reduce the damages without the consent of both parties, and therefore the rule must be made absolute for a new trial. It must be understood that we give no opinion as to the admissibility of the evidence of John Leeson. LITTLEDALE, TAUNTON, and PATTESON, JJ. concurred. (1) 9 Geo. IV. c. 14, s. 1. Rule refused. LEESON v. SMITH. [ *306 ] |