Simmons v. Swan, 275 U.S. 113 (1927)
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Simmons v. Swan
No. 65
Argued October 24, 1927
Decided November 21, 1927
275 U.S. 113
CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE FIRST CIRCUIT
Syllabus
1. In an action on a contract, objection that a waiver or excuse of legal tender should have been pleaded is not open on review if not raised below. P. 115.
2. A contract for the sale of property called for a downpayment by check, which was made, other payments by notes with some mortgage security, and a payment of $2,500 to be made on or before a date specified, which was the last day for performance of the contract, time being declared of the essence. The parties met on that day at the place specified in the contract, the other papers were signed and ready, and the vendee then tendered the $2,500 in the form of a certificate of deposit on a near-by bank of unquestioned solvency, but the vendor, though some days before he had requested a check in lieu of one of the notes, refused the certificate because he "had not got to take it," and, saying " good night," left the meeting. Owing to the tardiness of defendant in arriving, banks were closed and the vendee could not get legal tender till the next day. The value of the property had risen greatly since the execution of the contract, and there was reason to believe that the vendor wished to escape from his bargain. In an action by the vendee for breach of the contract, held:
(1) In such circumstances, and in view of the way of modern business, the jury might find it was natural and reasonable for the vendee to suppose that the certificate of deposit would be enough. P. 116.
(2) If the vendor, without previous notice, demanded strict legal tender, the vendee was entitled, at least, to a reasonable opportunity -- i.e.j until the next day -- to tender it. Id.
(3) The jury might also find in the vendor’s behavior refusal to go farther, which would make another tender unnecessary. Id.
11 F.2d 267 reversed.
Certiorari, 273 U.S. 675, to a judgment of the circuit court of appeals which affirmed a judgment on a verdict against the plaintiff, directed by the district court in an action by Simmons to recover damages from Swan for breach of a contract.