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new contract was entered into, and tion or inaction indicating a waiver, before January 20, 1873, the original to enforce unreasonable loss on the agreement could have been forfeited

other party.

Scannell V. American by defendant for nonpayment, be- Soda Fountain Co. (1901) 161 Mo. 606, cause the new agreement, as to the 61 S. W. 889; Mastin v. Grimes (1885) time of payment, took the place of the 88 Mo. 478. If plaintiff intended to old. That it was competent for the stand on the ten-day limit, he should parties thus to change their contract have been correspondingly prompt in cannot be doubted. Upon the failure making known his objections to the of plaintiff to pay at the time speci- title. His statement, on cross-examfied by the new contract, was the old

ination, that it was then to be $200 or contract revived? Surely not, for it

nothing, and the fact that he did not had been superseded by the new con

go back to Pierce City until the tract. The old contract, as to the

eleventh day, and then demanded the time of payment, had ceased to be of

return of the $200, and stated that it force; the parties rested upon the new one. This is very plain. Does the

was too late to remedy the defects in

the abstract, coupled with the fact new contract make time of its 'eg

that the evidence shows that he had sence?' Surely not; it is nothing more than a simple agreement that payment purchased a place at Exeter for $1,200 shall be made at the time specified,

between the time of making this conat 10 per centum per annum interest.

tract and the date on which he notiThe case is simply this: a contract

fied the defendant that he wanted the making time of its 'essence' is super- $200 returned, would indicate that the seded by another contract that has deal, not having been completed withno such provision; this is all there is in the ten days, was not the ground of it. We surely will not be expected on which he was seeking to repudiate to cite authorities to support the posi- this contract. The further fact that, tiun that it is competent for parties on being asked for the abstract that thus to change their contracts, and it might be corrected, he refused to that the construction we put upon the give it up to the defendant, is convincnew contract is correct. These posi- ing that he at that time did not want tions are based upon elementary prin- the abstract to show good title, and ciples of the law.

was not willing to give the defendant In St. Clair v. Hellweg (1913) 173

an opportunity to make it show good Mo. App. 660, 159 S. W. 17, it appeared title, provided it was within defendthat the contract for the sale of land

ant's power to do so." was to have been completed ten days

In Hausman v. Johnson (1907) 32 after its execution. An abstract of title

Pa. Super. Ct. 339, it appeared that an was furnished three days after the execution of the contract. The purchas

agreement was entered into between er did not return the abstract until

the plaintiff and the defendant for the

sale and purchase of certain tracts after the time set for completion, and

of land, the contract to be completed then objected to the title, but declared

sixty days after its execution. On the the deal off, and demanded the return

examination of the title, it was found of his earnest money. The court held

that there was a ground rent which that where the condition that time

had never been extinguished. About was of the essence had been waived,

two months subsequent to the executhe courts would not allow the other

tion of the agreement, the plaintiff party to suffer any unreasonable loss

gave notice that the title was not free by the waiver, saying: "Where time

and clear of encumbrances, and twenis of the essence of the contract,

ty days later she gave notice that she courts will enforce a strict compliance desired the return of her purchase within such time; but the action of

money. The court held that, the time the parties may constitute waiver for performance having passed, by the of this element altogether, and courts consent of the parties the time was will not allow either party, by his ac- waived, and the vendor was entitled

4 A.L.R.-52.

to a reasonable time in which to clear the parties, the time for performance the title.

became indefinite, the court saying: In Moore's Estate (1899) 8 Pa. Dist. “No money was paid or demanded at R. 84, affirmed in (1899) 191 Pa. 600, the end of the sixty days, nor was a 43 Atl. 474, it appeared that an agree- deed tendered by the vendor. That ment was made for the sale of a cer- period having passed, the time for pertain tract of land on a day certain. formance by the parties became indefiNeither party performed on that date, nite, but mutual and dependent whenbut the vendor continuously extended ever it should occur. In this category, the time, encouraging the complain- whichever of the parties first desired ant to obtain the necessary money. to enforce performance was bound to After the vendor's death, his execu- regard his part of the contract as a tors refused to perform the contract. condition precedent, and perform or The court held that the vendor had offer performance in order to enable waived the time of performance, and him to proceed to enforce the contherefore the vendee was entitled to tract.” performance within a reasonable time In Opsjon V. Engebo (1913) 73 thereafter. It was said: “After waiv- Wash. 324, 131 Pac. 1146, it appeared er, or where the agreement was orig- that the vendee encouraged the vendor inally indefinite, time does not become to prosecute a suit to remove a cloud of the essence until notice be given on his title, accepted the first instalby one of the parties, insisting upon ment of interest, and consented to a compliance within a reasonable time. further delay. Later, he sought to reThe vendee succeeded, as the

scind the contract on the ground that evidence shows, in making all the

time was of the essence. It was held

that after a waiver of the time fixed necessary arrangements in New York for carrying out his part of the con

for performance, the vendor was entract, and performance was only pre

titled to a demand and a reasonable vented by the sickness and subsequent

time within which to perform. The

court said: “The rule is well settled death of the vendor. As he has shown

in this state that, after a vendor has himself, at all times, 'ready, desirous,

waived the essence clause of a conprompt, and eager to perform the con

tract, the purchaser will not be in tract,' he ought not to be made to suf

default until after a demand has been fer the consequences of the complica- made upon him for a compliance with tion and delay thus arising.”

his contract, and a reasonable time In Hatton v. Johnson (1876) 83 Pa.

has elapsed in which to comply with 219, it appeared that on the date set

the demand. for the payment of the final instal

The appellant, ment and delivery of a deed the ven

having encouraged the prosecution of dee asked for an extension of time.

the suit to quiet title to the lot, and On a subsequent date he refused to ac

having acquiesced in the delay in tencept the deed tendered. In an action

dering the deed and abstract of title, to recover the money paid on the con- was not in a position to assert a tract, the court held that once a day

breach of the contract upon the part certain had been designated for the of respondents in failing to convey the completion of a contract for the pur- lot at the time agreed upon.” chase of land, and the time had been But in Drown v. Ingels (1892) 3 allowed to pass without performance, Wash. 424, 28 Pac. 759, it appeared the vendors were entitled to a reason- that time was made of the essence of able time in which to perfect their the contract for the purchase of land. title.

In case of the nonpayment of any of In Irvin v. Bleakley (1870) 67 Pa. the instalments the vendor had the 24, it appeared that neither the purchas- right to declare a forfeiture. On the er nor the vendor offered to perform ac- date set for the first instalment the cording to the terms of the contract. It purchaser asked for an extension of was held on this point that where the time. The extension was granted by period had passed for performance by the vendor, provided the purchaser


should, at a stated day, pay a larger low, we think defendants were absum, which would be in full for the solved of their duty to convey to plainland. The money was not paid at the tiff according to the terms of said time, and was not tendered for several contract." days thereafter. In the meantime the In Cosby v. Honaker (1905) 57 W. vendor sold the property to another. Va. 512, 50 S. E. 610, it appeared that It was held that, by the extension, the a day certain was fixed for the comvendor did not waive the right of for- pletion of a contract for the purchase feiture. The court said: “It is, how- of lands. On that date the vendee ever, strenuously argued on the part was not ready to perform, and the of appellant that the negotiations at vendor granted an extension of time. the time of the extension of the time Thereafter, several other extensions of payment constituted an entirely were granted to the vendee, but every new contract, and that time was in time the agent of the vendor said he no sense of the essence thereof. With would be ready to complete, he disapthis contention we are unable to agree. pointed the vendee, and finally, after The intention of the parties must al- several such disappointments, inways be given force, and when we take formed the vendee that he would not into consideration all the circum- complete the contract. The court held stances surrounding the parties at the that the vendee was entitled to a reatime of this transaction, we cannot for sonable notice fixing a time within a moment think that there was an which to perform, saying: "The only intention on the part of defendant time that he (vendor] gave notice to Ingels, when making this contract or the plaintiff that the deal must be extending the old one, to waive any of closed within a specified time was when the conditions inserted in said old he notified her that it must be done on contract for his protection. By the the 26th of March, when defendant terms of the extension he deducted

would be in Bluefield; but his notice from the total balance of purchase

did not indicate that unless she comprice due, one third thereof, and

plied with her part of the contract it agreed to accept in full payment for

must be abandoned; but, on the conthe land that much less than he would

trary, he called upon her two days have been entitled to by the terms of

after the time fixed in his notice, on said contract; and it is clear that one

the 28th, according to his own testiof the main considerations for such

mony, then waiving the benefit of it deduction was the prompt payment at

by giving the plaintiff still further the exact time named; and to hold time in which to comply with her conthat, instead of having made it certain tract, and when he finally attempted that he would either receive the sum

to rescind the contract by making a named on that day or be entitled to a tender of the money and its interest forfeiture of the contract, he had which she had paid on account of the waived the element of time which was contract, it was without any notice to theretofore incorporated therein, and the plaintiff whatever that he was made it possible for the other party to proposing to rescind. “Where the time very much postpone such payment, and of performance is fixed by the conat the same time preserve her rights tract, the question is whether it is of thereunder, would not be reasonable. the essence of the contract or not, and We think the extension above stated this is a question of construction. 9 was made subject to all the conditions Cyc. 604. 'Time is not of the essence of the written contract existing be- of a contract to convey land at a futween the parties, excepting so far ture day, unless the language of the as they were expressly modified by contract clearly indicates that it was the agreement then entered into. The so intended by the parties.' Knott v. above provision as to time, and for- Stephens (1874) 5 Or. 235. In Abbott feiture for want of strict compliance v. L'Hommedieu (1877) 10 W. Va. 677 therewith, was in force, and, under it (syl. 7), it is held: 'Time is not, and the facts found by the court be- in courts of equity, considered, ordiThis ap

narily, of the essence of a contract In Ex parte Gardiner (1841) 4 for the sale of land, and especially as Younge & C. Exch. (Eng.) 503, 10 L. J. to the payment of purchase money. Exch. in Eq. N. S. 46, it appeared that Perhaps there may be circumstances a sale was to have been completed on or terms employed, such as to take the a certain date, but the purchaser did case out of the general rule.' In § 393, not pay the purchase money on that Pomeroy on Specific Performance of date. He was, however, permitted to Contracts, it is said that the vendor, remain in possession. Subsequently if he intends to avail. himself of the he assigned the contract to a railway provision for avoiding the contract, company, and tendered the purchase 'must give the purchaser a timely and money, but the vendors refused to acreasonable notice of his intention to cept same. The railway company avoid the contract, or must do some thereupon instituted a suit to compel unequivocal act which unmistakably specific performance. The court held shows that intention, for the vendor that a reasonable time should be alcannot treat the default alone as ter- lowed in which the vendee might perminating the agreement.'

form. plies, of course, in a case where time But in Seton v. Slade (1802) 7 Ves. is not made of the essence of the con- Jr. 265, 32 Eng. Reprint, 108, 6 Retract by the terms of the contract it- vised Rep. 124, however, it appeared self. In case at bar, the acts of the that the defendant had informed the defendant up to the 1st of May were plaintiff's auctioneer that if the conentirely consistent with a purpose to tract was not completed on the date continue the contract; the first intima- set he would consider the contract retion the plaintiff had of defendant's scinded. The abstract was not furintention to avoid it was on the 3d nished until å few days before the day of May, when Honaker, the agent, date set for completion. After the told plaintiff that his father had con- date set for completion, the defendant cluded not to close the deal, and his returned the abstract and refused to purpose to return her the money she perform. The court held that, having had paid. On the 1st day of May, as accepted the abstract so late, the detestified by the daughter of plaintiff, fendant thereby waived the time fixed Mary C. Cosby, Honaker had agreed and was bound to complete the conto go to plaintiff's house on the morn- tract. ing of May 2, and close up the matter. In Smith v. Burnam (1795) 2 Anstr. Honaker stated in his testimony after- 527, 145 Eng. Reprint, 956, it appeared wards that Miss Mary C. Cosby told that the defendant agreed to purchase him on Thursday (May 1) that her a certain estate on a day certain. The mother wanted him to come up, 'I be- vendor did not produce his title until lieve she said, to close the deal. I several days later, when the defendant told her I would go up the next day, accepted the same, but, finding that in the forenoon, but didn't go until there was litigation pending against Saturday, and I think it was in the the property, refused to complete the forenoon that I went.'

And it was contract and instituted an action to then he gave plaintiff the information recover the deposit paid. In a suit to that defendant had concluded not to restrain that proceeding, and to obtain complete the contract. The only time a decree for specific performance, any notice was given that the money the court held that by accepting the must be paid by the specified time was abstract when presented to him, the on the 26th of March, but even then defendant consented to the delay, saythere was no intimation of any inten- ing: “The defendant did not make tion to rescind or cancel the contract any objection as to the delay, when by the defendant upon failure to pay the abstract was presented to him; at that time, and if the notice had con- by proceeding to examine it he goes tained such provision the right to en- on in pursuance of the agreement, and fore it was waived by granting further waives the objection. The validity time in which to pay the money.of the title cannot be determined in this stage of the cause; nor can the a reasonable time for plaintiffs to comdefendant determine that question. To plete. allow him to proceed on the action In Foster V. Anderson (1907) 15 would be to let him rescind the con- Ont. L. Rep. 362, affirmed in (1908) 16 tract."

Ont. L. Rep. 565, which is affirmed in Where there has been an extension (1909) 42 Can. S. C. 251, it appeared of the time for the completion of a that up to the date set for the percontract, and time still remains of the formance the solicitors of the vendor essence, such an extension does not had not informed the purchaser that constitute a waiver of the condition, they had a deed executed by the venbut merely substitutes the extended dor in their possession. On the date time for the original. Barclay v. Mes- set therefor, the vendee sent a draft senger (1874) 43 L. J. Ch. N. S. (Eng.) deed to the vendor's solicitor to be 449, 30 L. T. N. S. 351, 22 Week. Rep. forwarded to the vendor, and still noth522. So, in Parkin v. Thorold (1851) ing was said. The vendor thereupon de2 Sim. N. S. 1, 61 Eng. Reprint, 239, fended in the action for specific peraffirmed in (1852) 16 Beav. 59, 51 Eng. formance, on the ground that the venReprint, 698, 22 L. J. Ch. N. S. 170, 16 dee did not perform within the time. Jur. 959, 6 Eng. Rul. Cas. 503, it ap- The court held that although time was peared that on the date set for per- made of the essence, still the vendor formance for the sale of certain lands could not claim the benefit of that the vendor was not ready to complete. clause, if he himself had been guilty Prior to that date he requested an of delay, and that reasonable time extension, which was granted. In the should be allowed, saying: "Assume letter granting the extension, the so- that time was made essential as to the licitor of the purchaser notified the completion of the contract, the rule vendor that, if the contract was not of court is that the vendor cannot completed on the extended date, the claim the benefit of the term, making purchaser would consider the contract time of the essence, if he himself has at an end. The contract was not com- been guilty of laches,-if he has failed pleted at the date so extended, where- to bestir himself when he should have upon the purchaser's solicitor notified been doing,--this policy of inactivity the vendor that the contract was at an may inure to the exculpation of the end, and demanded the deposit. Sub- other side. The court may then consequently, the vendor instituted a pro

sider that the time element has ceased ceeding in equity to obtain specific

to be of an essential character, and performance. The court held that the

that reasonable diligence only has to plaintiff, having defaulted on the ex

be regarded." tended date, was in the same position

In Oppenheimer v. Humphreys as if no extension had been granted

(1890) 31 N. Y. S. R. 622, 9 N. Y. him.

Supp. 840, affirmed without opinion in In Norman v. McMurray (1913) 10

(1891) 125 N. Y. 733, 26 N. E. 757, D.L.R. 757, 4 Ont. Week. N. 1256, 24

it appeared that a date was set for Ont. Week. Rep. 532, it appeared that

the completion of a contract for the

sale of land. On the date set for after the date set for completion of a contract to sell land the defendant

completion, the purchaser extended still negotiated with plaintiffs. The

the time in order to enable the venplaintiffs, were told by the agent of

dors to perfect the title, and on such both parties that it would be satis

extended date a further extension was factory to the defendant if the contract

granted, at which time a further exwas closed by the following Saturday.

tension was refused, and the purchasIt was not completed on that day, and

er instituted an action for the recovthe defendant notified the plaintiffs ery of the earnest money. It was held that the contract was at an end. The that while in equity the courts somecourt held that, the time fixed having times would disregard the provision been allowed to pass, the defendant of the contract that time is of the should have given notice, and allowed essence, depending on the facts of

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