Gamble v. Beeson, 50 N.C. 128, 5 Jones 128 (1857)

Dec. 1857 · Supreme Court of North Carolina

50 N.C. 128, 5 Jones 128

JOHN E. GAMBLE v. JOHN W. BEESON.

A bond to pay a certain sum on or before a certain day for a gold-mine, with a condition to the effect, that “should the mine prove valueless, the bond to be null and void, otherwise of full effect/' was Held to become absolute on the day named for payment, unless it had been ascertained before the day that the mine was valueless, and it was error to admit evidence of tests and examinations made after the day fixed for payment.

This was an action of debt, tried before Maitly, J., at the last Fall Term of Guilford Superior Court.

The plaintiff declared on the following bond: ‘

“ $150. On or before the 25th of December next, I promise to pay John E. Gamble,, the sum of one hundred and fifty dollars, for value received of him. The condition of the above obligation is such, that should the mining interest of the James White tract of land, this day bought by me, prove valueless, it shall be null and void; otherwise of full effect. July 5th, 1853.” J. W. BeesoN, [seal.~\

The defendant proposed to show by tests and working of the mine after the 25th of December, 1853, that the said land was valueless for mining purposes; which testimony was oh-jected to by the plaintiff, but admitted by the Court; for which plaintiff excepted.

Yerdict for the defendant. Judgment and appeal.

MaLtwi and Foiole, for the plaintiff.

(rorrell, for die defendant.

Pearson, J.

The time at which the tea's and examinations were to be made, in order “ to prove the mine valueless,” is not expressed in the condition, and the <¡ oes ion is, within what time was the test to be made? I'Ve .’link, according to ihe proper construction of the instrumenir was to be done •• on, or before,” the 25th of December, when the money was to be paid.

Suppose the money had been paid on the 25th of December, and afterwards, the mine, being tested, proved valueless, could it have been recovered back? If so, at or what length of :i:ne It is certain it could not have been recovered back, 'i.'.e legal effect of the bond was to impose on the defendant ihe niity of seeking the plaintiff andpaj-b',.: the money to him • n that day. lie was in default for not having done so. Shall i e V aliened to take advantage of his cun wrong, for the ] urpn e of extending a condition which wu made for his ■ ei/_ hi Such would be the effect, if ho < wdd avail himself of a .e.;t made after the day on which he ..as bound to pay the money. So, we conclude the bond be-1 > e absolute on that day. Such was the object and intern of e parties.

Tliecouur-elío:thedefenclant,beingpreí.'.;v V ) ihe argument, that if that day was not the limit of the lime, r >" that it would be indefinito, suggested that the proper limit isas the bringing of the action.

We can see no reason upon which this proposition can be supported. The defendant was in default by not paying the money on the day the bond became absol:' <\ No laches can be imputed to the plaintiff for not suing for-'bwifh, and if he chose to give indulgence, relying on the bond as an absolute securitv, an attempt to keep the condition open on that ground, comes with an ill-grace from the defendant. His default was aggravated by not paying the money until the plaintiff was forced to sue him.

"We have treated-the ease as if the evidence was offered to support the allegation that the mine proved valueless after the day, because that was the point presented in the argument, and not as'if it was offered for the purpose of reflecting back in aid of tests previously made, so as to support an allegation that the mine had proved valueless before the day.

Pee Cueiam, Judgment reversed, and a venire de novo.