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each particular case, law courts will adhere strictly to the terms of the contract; and since, in the present case, a time was set for performance, and several extensions had been granted, the purchaser was, therefore, not bound to wait a further length of time in order that encumbrances might be removed. The court said: "But it may be urged upon the part of the appellants that their offer to satisfy the mortgage, and place a new mortgage upon the premises for $16,000, with interest at 5 per cent, would fulfil the requirements of the contract. That is undoubtedly true, but the plaintiff having fixed a time at which this contract was to be closed, and having by his acts made time of the essence of the contract, and with the intention that time should be of the essence of the contract, accentuated by the adjournments to specific dates which took place when these various objections were under discussion, the plaintiff was entitled to insist upon performance at that time, and was not bound to wait in order that difficulties or encumbrances affecting the title might be removed. 3 Parsons, Contr. 383. It is true that in equity time is sometimes not regarded as of the essence of the contract. Voorhees v. De Meyer (1847) 2 Barb. (N. Y.) 37; Wiswall v. McGown (1848) 2 Barb. (N. Y.) 270. But this question always depends upon the facts of each particular case, and whether conveyance can be as well done at a later period as an earlier, and without detriment to the party insisting upon a rigid adherence to the time fixed in the contract. But this rule has no application to actions at law. The rights of the parties are determined strictly by the agreement, and though, in this case, had the appellants procured the mortgage of $16,000 at 5 per cent, and tendered the same within five or six days after the last adjourned day for the completion of the contract, with a proper conveyance of the land in question, the plaintiff would probably have been compelled in equity to have completed his contract; but, they not having done so, the mere fact of their having offered

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to complete the title in the way suggested gives them no standing in a court of equity to enforce specific performance."

III. Necessity and effect of notice of rescission.

Where the time fixed for the completion of a contract for the sale or exchange of land was originally essential, but a forfeiture has been waived, or where time was not originally essential, but there has been an unreasonable delay in performance, a notice allowing a reasonable time in which to perform is necessary before the other party can be placed in default.

Arizona.-Bennie v. Becker-Franz Co. (1913) 14 Ariz. 580, 134 Pac. 280. Arkansas.-Evans v. Ozark Orchard Co. (1912) 103 Ark. 212, 146 S. W. 511.

California.-Boone v. Templeman (1910) 158 Cal. 290, 139 Am. St. Rep. 126, 110 Pac. 947.

Kansas. Knipe v. Troika (1914) 92 Kan. 549, 141 Pac. 557.

Moore's Estate Pennsylvania. (1899) 8 Pa. Dist. R. 84, affirmed in (1899) 191 Pa. 600, 43 Atl. 474; Sylvester v. Born (1890) 132 Pa. 467, 19 Atl. 337.

South Dakota.-Burchfield v. Hageman (1915) 35 S. D. 147, 151 N. W. 47. Washington.-Whiting v. Doughton (1903) 31 Wash. 327, 71 Pac. 1026; Walker v. McMurchie (1911) 61 Wash. 489, 112 Pac. 500; Shorett v. Knudsen (1913) 74 Wash. 448, 133 Pac. 1029. England.-King v. Wilson (1843) 6 Beav. 124, 49 Eng. Reprint, 772.

Canada.-Dahl v. St. Pierre (1913) 5 Ont. Week. N. 230, 25 Ont. Week. Rep. 261, 14 D. L. R. 514; Rousech v. Schindler (1903) 7 Terr. R. Rep. 92.

Thus, in Boone v. Templeman (Cal.) supra, it was held that where time was originally of the essence of the contract, but by reason of the waiver of the right to a forfeiture it had ceased to be so, a notice might fix a new essential time for performance. The court said: "It is to be observed that these principles apply where time is merely material to the contract, and not where it is essential. Where time was originally essential, but for sufficient cause a forfeiture for default

therein has been waived, time ceases to be essential, and becomes only material thereafter until the vendor again makes it essential by a proper notice and demand. In the case at bar, upon the facts shown by the complaint, a forfeiture had been waived, and thereafter time was not essential, but its efflux was a material fact bearing upon the right of Boone to enforce performance by suit."

In Sylvester v. Born (Pa.) supra, it appeared that the plaintiff entered into a contract with one of the defendants to purchase from the other defendant a certain tract of land. On the date set for performance, the plaintiff was not ready, and three days after that date he obtained a sevenday extension. On the expiration of such period the defendants refused to perform. The court held that time not being of the essence of the contract, and defendant having waived the date set for performance, plaintiff was entitled to a reasonable notice that a definite date after the day certain would be insisted on for performance, saying: "It was further argued that it would be unjust and dangerous to vary from the written agreement of the parties; that if an extension of three days were allowed the defaulting party, as well might he ask for a longer time; but such a contingency has been provided for. In contracts where time is not of the essence of the contract per se, it can be made so at the option of either party, when the other delays in fulfilling the terms of the agreement. Pom. Spec. Perf. § 304. It was only necessary for the defendants in the present case to give the plaintiff a fair and reasonable notice that a definite date on or after the sixtieth day would be insisted on for a settlement, to have made time of the essence of the contract, although not a part of it before. Since they did not do so, they have no right to complain of hardship."

In Knipe v. Troike (Kan.) supra, it appeared that the plaintiff had contracted with the defendants for the exchange of certain lands. The time set for performance was sixty days after the making of the contract.

Subsequent to the date set, the parties were still negotiating for the perfection of their respective titles, and one of the defendants placed a deed in the hands of the plaintiff's attorney, and subsequently withdrew the same, notifying the plaintiff that the deal was off. In a suit for specific performance of the contract, the court held that a notice of an intention to rescind should have been given, allowing a reasonable time for performance by the other party.

In Burchfield v. Hageman (S. D.) supra, it appeared that on the date set for performance the vendee objected to the title, and the vendor thereupon proceeded to cure the alleged defects. Several months later the vendee notified the vendor that he demanded the return of the earnest money. Subsequently, the vendor notified the purchaser that he declared a forfeiture of the payment made. The court held that, both parties having waived the essence of time, the vendee was entitled to a reasonable notice of the vendor's election to forfeit such payments.

In Shorett v. Knudsen (Wash.) supra, a suit to compel the specific performance of a contract to purchase a certain lot of land, it appeared that the purchase price was to be paid annually by instalments. None of them was paid on the dates fixed for payment. Two years after the last payment was due the vendor demanded payment, and at the same time declared a forfeiture. It was held that the vendor, having waived the time fixed, could not thereafter declare a forfeiture until after a demand for payment and the lapse of a reasonable time thereafter.

In Walker v. McMurchie (1911) 61 Wash. 489, 112 Pac. 500, it appeared that the plaintiff agreed to sell and the defendant to buy certain land, payments to be made on certain dates. None of the payments except the first were made on the date set. An agreement was entered into between the plaintiff and an assignee of the defendant for a waiver of the terms of the contract as to the payments. Four years later, nothing having been

paid, the plaintiff declared a forfeiture. It was held that having waived strict compliance with the contract he was required to give due notice of his election to insist on a strict compliance.

In Whiting v. Doughton (1903) 31 Wash. 327, 71 Pac. 1026, it appeared that after the time for the payment of several instalments of the purchase price the vendor accepted the arrears and also an advance payment. Subsequently, the vendor informed the vendee that there need be no hurry in the payment of the balance. Later the vendor gave notice that the contract was rescinded. The court held, in an action to have the contract canceled, that the vendor, having waived the forfeiture clause, could not put the vendee in default without first demanding payment of the money and allowing a reasonable time thereafter in which to perform, saying: "Appellants, by their conduct in dealing with respondents and accepting payments, waived the forfeiture clause, and that by reason thereof they could not put respondents in default without having first demanded payment of the money remaining unpaid, and giving respondents a reasonable time thereafter in which to perform."

In Evans v. Ozark Orchard Co. (1912) 103 Ark. 212, 146 S. W. 511, it appeared that the plaintiff entered into a contract for the purchase of a tract of land. The abstract of title was to be furnished on a day certain, but, it having been found that the land described in the contract was not the tract selected, negotiations were entered into for the correction of the mistake. Subsequently, but before the correction, the plaintiff demanded the abstract within seven days. The court impliedly held that a notice allowing a reasonable time in which to furnish the abstract was necessary, especially in view of the fact that negotiations had been in progress for several months after the time set for the delivery of the abstract. In that case it was said, referring to those negotiations: "This amounted to a waiver of the time; and the question then was whether the abstract was

furnished within a reasonable time. In the letter of October 18th, a demand was made for furnishing the abstract on or before October 25th. But we cannot say that the chancellor erred in holding that this was not a reasonable time for a compliance with the contract in that respect. Especially is this true when we find that defendant, instead of refusing to perform the contract in any respect, immediately replied to the letter, calling attention to the former unanswered letter, and asking for further statement as to what the plaintiff intended to do. There were mutual undertakings in the contract with respect to executing notes and mortgages, etc., and there had been prior differences concerning the deduction for the land covered by the road. It was not unreasonable for the defendant to ask for a specification as to precisely what the plaintiff intended to do with respect to these differences before preparing the deed. At any rate, plaintiff's demand was for a summary performance of the contract within a time so short that we are unable to say that the chancellor was in error in holding it to be unreasonable."

In King v. Wilson (1843) 6 Beav. 124, 49 Eng. Reprint, 772, it appeared that defendant, who was a tenant, agreed to purchase the premises of which he was the occupier, on a day certain. The purchase was not completed on that day, but both parties negotiated as to the perfecting of the title subsequent to that date. Finally, about a month later, the defendant gave the plaintiff a notice that if he did not perfect the title in a week's time defendant would consider himself not bound by the contract. Subsequently, however, he entertained some of plaintiff's propositions. The court held that while time was not originally of the essence of the contract, a notice by either of the parties allowing a reasonable time to the other to perform made it so, but that the defendant waived the time thus fixed by his subsequent acts, saying: "The first question in this case is whether the contract has been put an end to. Now, I am clearly of opinion

that though time may not be of the essence of a contract, yet, where there is a great and improper delay on one side, the other party has a right to fix a reasonable time within which the contract is to be completed; that time will then be considered by this court as having become of the essence of the contract; and in case the party makes default in doing what is right and proper on his part, within the time so fixed, it will be a reason why this court will not afterwards interfere in his favor to compel the execution of the contract."

In Rousech v. Schindler (1903) 7 Terr. L. R. (Can.) 92, it appeared that prior to the date set for the completion of a contract for the sale of land the vendor gave the vendee notice that if he did not pay the balance due he would rescind the contract. The vendee did not pay the balance on the date set, but several days later tendered the amount due. The vendor refused to execute a conveyance, whereupon a bill for specific performance was brought. It was held that, where time was not originally of the essence of the contract, a party must have been guilty of unreasonable or unnecessary delay or laches in order to permit the other to give notice to make time of the essence, and even in that case a reasonable time must be given the defaulting party. The court said: "Before a party to a contract can be in a position to give a notice to make time of the essence of the contract, the other party must have been guilty of some laches or unreasonable or unnecessary delays, and then a reasonable time after that must be given him to enable him to carry out his part of the agreement."

In Manson v. Howison (1894) 4 B. C. 404, it appeared that prior to the time set for performance of a contract for the sale of land, and after the payment of a deposit by the vendee, a lis pendens was filed against the land. Time was made of the essence of the contract. It was also agreed that the vendee could complete at any time during the time set for completion. The vendor and the vendee then agreed that no further pay

ments should be made until the lis pendens was removed. After the original period for completion, and before the lis pendens was removed, the vendee made a tender of the whole amount of the purchase money, and a conveyance for execution by the vendor, who asked time to see her solicitor. No further tender was thereafter made, but an action was instituted by the vendee for the rescission of the contract and the return of the deposit. The vendor counterclaimed, demanding specific performance. The lis pendens was afterwards removed. It was held that, time being of the essence of the contract, the vendee had a right to rescind as he had not waived such right. The court said: "Here the payment was indefinite until settlement of the Donahue suit. It was then incumbent on the defendant to prove that Manson agreed not to exercise this privilege. The questions whether she extended the time, and was bound to give a good title, and of conduct giving him a right to rescission, bring the case under Hunter v. Daniel (1845) 4 Hare, 432, 67 Eng. Reprint, 717, 14 L. J. Ch. N. S. 194, 9 Jur. 520, and Monro v. Taylor (1850) 8 Hare, 51, 68 Eng. Reprint, 269, affirmed in (1851) 3 Macn. & G. 713, 42 Eng. Reprint, 434, 21 L. J. Ch. N. S. 525. Her request to him not to make any more payments on account of the agreement was an effectual waiver of the time of payment, which itself creates an extension. Manson's passiveness was not an election on his part to waive; he was not bound at all. Clough v. London & N. W. R. Co. (1871) L. R. 7 Exch. (Eng.) 26, 41 L. J. Exch. N. S. 17, 25 L. T. N. S. 708, 20 Week. Rep. 189, shows what would take away the right to elect. As long as a man does nothing and says nothing he does not elect unless the rights of the third party intervene, and then election is either by express words or unequivocal act."

But it has been held that where a party has defaulted in the payment of the instalments on the dates set, he is not entitled to a notice allowing a reasonable time within which to perform. Prairie Development Co. v.

Leibig (1908) 15 Idaho, 379, 98 Pac. 616. In that case it appeared that the defendants agreed to convey a certain tract of land to the plaintiff on the payment of the purchase price, which was to be made in instalments, and that on the payment of a certain amount of the purchase price the plaintiff could demand a deed, and was to give to the defendants a mortgage for the balance. A certain amount of the purchase price was to be paid on a day certain, but on that day only a portion thereof was paid. An extension was given for the payment of the balance. It was provided that if any of the payments were not made on the days fixed in the agreement, that which had been paid was forfeited. It was contended, among other things, by plaintiff, in an action. for specific performance, that a notice of the defendants' election of forfeiture was necessary, and that a reasonable time must be allowed the plaintiff to fulfil his part of the contract. The court held, however, that where a party to a contract does not make payments according to the terms of the contract, and by the terms of the contract the other party is entitled to a forfeiture for nonpayment on the days fixed, the defaulting party is not entitled to a notice of the election of the other party, and to a reasonable time in which to perform on his part. IV. What constitutes reasonable time.

In each of the following cases, the period stated was held to be a reasonable time for the performance of a contract for the sale or exchange of lands, the time fixed by the contract having been waived:

V.

Wilson

-Six days: Mitchell (1912) 2 D.L.R. (Can.) 714, 20 West. L. R. 671 (purchaser paid part of the consideration for tract of land, and agreed to pay balance out of loan he agreed to get. Vendor, after waiting six days without anything being done, retook possession);

-Twelve days: Smedberg v. More (1841) 26 Wend. (N. Y.) 238, affirming 8 Paige, 600 (no time was fixed for performance of contract. Balance of first instalment was to become due on delivery of deed. Judgment against

land was to be purchased in meantime. Purchasers had demanded performance, and two months later again demanded performance, and twelve days later refused tender of deed);

-Twenty-two days: Benson v. Tilton (1863) 24 How. Pr. (N. Y.) 494, affirmed in (1869) 41 N. Y. 619 (nothing was done except that after default vendor retook possession. Both parties treated contract as still in force subsequent thereto, until twenty-two days after date set, when vendee demanded conveyance);

-Forty-two days: Harding v. Olson (1898) 177 Ill. 298, 52 N. E. 482 (purchaser was to be entitled to conveyance of tract of land on payment of balance of purchase price. Purchaser tendered performance, but vendor was not ready. Subsequently another tender was made, and five days allowed vendor in which to perform. Purchaser actually waited forty-two days);

-Two years: See CARROLL v. MUNDY (reported herewith) ante, 811.

In each of the following cases the period stated was held to be an unreasonable delay in the performance of a contract for the sale or exchange of land, the time fixed by the contract having been waived:

"Ten days or so:" Lawson v. Hunt (1914) 26 Ont. Week. Rep. 58, 6 Ont. Week. N. 89 (vendor was not ready on date set for completion. Time was made of essence. In reply to letter of purchaser subsequent to day fixed, vendor notified purchaser that he would be ready in "ten days or so");

-One month: Plummer v. Kennington (1910) 149 Iowa, 419, 128 N. W. 552 (title was to have been closed on day certain. At time, good title was not shown. Abstracter thereupon proceeded to correct and recopy ab stract. While so occupied, and one month later, action was instituted for recovery of value given in exchange for land);

-One and one-half months: GARRISON V. NEWTON (reported herewith) ante, 804 (two and one-half months after date set were consumed in clearPurchaser allowed vendor ing title.

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