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each particular case, law courts will to complete the title in the way sugadhere strictly to the terms of the gested gives them no standing in a contract; and since, in the present court of equity to enforce specific percase, a time was set for performance, formance.” and several extensions had been grant

III. Necessity and effect of notice of reed, the purchaser was, therefore, not

scission. bound to wait a further length of time

Where the time fixed for the comin order that encumbrances might be removed. The court said: “But it

pletion of a contract for the sale or

exchange of land was originally esmay be urged upon the part of the appellants that their offer to satisfy

sential, but a

but a forfeiture has been the mortgage, and place a new mort

waived, or where time was not orig

inally essential, but there has been an gage upon the premises for $16,000, with interest at 5 per cent, would ful

unreasonable delay in performance, a fil the requirements of the contract.

notice allowing a reasonable time in

which to perform is necessary before That is undoubtedly true, but the

the other party can be placed in deplaintiff having fixed a time at which

fault. this contract was to be closed, and

Arizona.-Bennie v. Becker-Franz having by his acts made time of the

Co. (1913) 14 Ariz. 580, 134 Pac. 280. essence of the contract, and with the

Arkansas.-Evans v. Ozark Orchard intention that time should be of the

Co. (1912) 103 Ark. 212, 146 S. W. 511. essence of the contract, accentuated California.-Boone v. Templeman by the adjournments to specific dates

(1910) 158 Cal. 290, 139 Am. St. Rep. which took place when these various 126, 110 Pac. 947. objections were under discussion, the Kansas.-Knipe v. Troika (1914) 92 plaintiff was entitled to insist upon Kan. 549, 141 Pac. 557. performance at that time, and was not Pennsylvania. Moore's Estate bound to wait in order that difficul- (1899) 8 Pa. Dist. R. 84, affirmed in ties or encumbrances affecting the ti- (1899) 191 Pa. 600, 43 Atl. 474; Syltle might be removed. 3 Parsons, vester v. Born (1890) 132 Pa. 467, 19 Contr. 383. It is true that in equity Atl. 337. time is sometimes not regarded as of South Dakota.—Burchfield v. Hagethe essence of the contract. Voorhees man (1915) 35 S. D. 147, 151 N. W. 47. v. De Meyer (1847) 2 Barb. (N. Y.) Washington-Whiting v. Doughton 37; Wiswall v. McGown (1848) 2 (1903) 31 Wash. 327, 71 Pac. 1026; Barb. (N. Y.) 270. But this question Walker v. McMurchie (1911) 61 Wash. always depends upon the facts of each 489, 112 Pac. 500; Shorett v. Knudsen particular case, and whether convey- (1913) 74 Wash. 448, 133 Pac. 1029. ance can be as well done at a later England.—King v. Wilson (1843) 6 period as an earlier, and without det- Beav. 124, 49 Eng. Reprint, 772. riment to the party insisting upon a Canada.—Dahl v. St. Pierre (1913) rigid adherence to the time fixed in 5 Ont. Week. N. 230, 25 Ont. Week. the contract. But this rule has no Rep. 261, 14 D. L. R. 514; Rousech v. application to actions at law. The Schindler (1903) 7 Terr. R. Rep. 92. rights of the parties are determined Thus, in Boone v. Templeman (Cal.) strictly by the agreement, and al- supra, it was held that where time was though, in this case, had the appel- originally of the essence of the conlants procured the mortgage of $16,- tract, but by reason of the waiver of 000 at 5 per cent, and tendered the the right to a forfeiture it had ceased same within five or six days after the to be so, a notice might fix a new eslast adjourned day for the completion sential time for performance. The of the contract, with a proper convey- court said: “It is to be observed that ance of the land in question, the plain these principles apply where time is tiff would probably have been com- merely material to the contract, and pelled in equity to have completed his not where it is essential. Where time contract; but, they not having done so, was originally essential, but for suffithe mere fact of their having offered cient cause a forfeiture for default

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therein has been waived, time ceases Subsequent to the date set, the parties to be essential, and becomes only ma- were still negotiating for the perfecterial thereafter until the vendor tion of their respective titles, and one again makes it essential by a proper of the defendants placed a deed in the notice and demand. In the case at hands of the plaintiff's attorney, and bar, upon the facts shown by the com- subsequently withdrew the same, notiplaint, a forfeiture had been waived, fying the plaintiff that the deal was and thereafter time was not essential, off. In a'suit for specific performance but its efflux was a material fact bear- of the contract, the court held that ing upon the right of Boone to enforce a notice of an intention to rescind performance by suit."

should have been given, allowing a In Sylvester V. Born (Pa.) supra, reasonable time for performance by it appeared that the plaintiff entered the other party. into a contract with one of the de- In Burchfield v. Hageman (S. D.) fendants to purchase from the other supra, it appeared that on the date defendant a certain tract of land. On set for performance the vendee obthe date set for performance, the jected to the title, and the vendor plaintiff was not ready, and three days thereupon proceeded to cure the alafter that date he obtained a seven- leged defects. Several months later day extension. On the expiration of the vendee notified the vendor that he such period the defendants refused to demanded the return of the earnest perform. The court held that time money. Subsequently, the vendor nonot being of the essence of the con- tified the purchaser that he declared tract, and defendant having waived a forfeiture of the payment made. the date set for performance, plaintiff The court held that, both parties havwas entitled to a reasonable notice ing waived the essence of time, the that a definite date after the day cer- vendee was entitled to a reasonable tain would be insisted on for perform- notice of the vendor's election to forance, saying: “It was further argued feit such payments. that it would be unjust and dangerous In Shorett v. Knudsen (Wash.) suto vary from the written agreement pra, a suit to compel the specific perof the parties; that if an extension of formance of a contract to purchase a three days were allowed the default- certain lot of land, it appeared that ing party, as well might he ask for a the purchase price was to be paid anlonger time; but such a contingency nually by instalments. None of them has been provided for. In contracts was paid on the dates fixed for paywhere time is not of the essence of ment. Two years after the last paythe contract per se, it can be made so ment was due the vendor demanded at the option of either party, when

payment, and at the same time dethe other delays in fulfilling the terms clared a forfeiture. It was held that of the agreement. Pom. Spec. Perf. the vendor, having waived the time § 304. It was only necessary for the

fixed, could not thereafter declare a defendants in the present case to give

forfeiture until after a demand for the plaintiff a fair and reasonable notice that a definite date on or after

payment and the lapse of a reasonable

time thereafter. the sixtieth day would be insisted on

In Walker v. McMurchie (1911) 61 for a settlement, to have made time

Wash. 489, 112 Pac. 500, it appeared of the essence of the contract, al

that the plaintiff agreed to sell and though not a part of it before. Since

the defendant to buy certain land, they did not do so, they have no right payments to be made on certain dates. to complain of hardship."

None of the payments except the first In Knipe v. Troike (Kan.) supra, were made on the date set. An agreeit appeared that the plaintiff had con- ment was entered into between the tracted with the defendants for the

plaintiff and an assignee of the deexchange of certain lands. The time fendant for a waiver of the terms set for performance was sixty days of the contract as to the payments. after the making of the contract. Four years later, nothing having been paid, the plaintiff declared a forfei- furnished within a reasonable time. ture. It was held that having waived In the letter of October 18th, a destrict compliance with the contract mand was made for furnishing the he was required to give due notice of abstract on or before October 25th. his election to insist on a strict com- But we cannot say that the chancellor pliance.

erred in holding that this was not a In Whiting v. Doughton (1903) 31 reasonable time for a compliance with Wash. 327, 71 Pac. 1026, it appeared the contract in that respect. Espethat after the time for the payment of cially is this true when we find that several instalments of the purchase defendant, instead of refusing to perprice the vendor accepted the arrears form the contract in any respect, imand also an advance payment. Subse- mediately replied to the letter, calling quently, the vendor informed the ven- attention to the former unanswered dee that there need be no hurry in the letter, and asking for further statepayment of the balance. Later the ment as to what the plaintiff intended vendor gave notice that the contract to do. There were mutual undertakwas rescinded. The court held, in an ings in the contract with respect to action to have the contract canceled, executing notes and mortgages, etc., that the vendor, having waived the and there had been prior differences forfeiture clause, could not put the concerning the deduction for the land vendee in default without first de- covered by the road. It was not unmanding payment of the money and reasonable for the defendant to ask allowing a reasonable time thereafter for a specification as to precisely what in which to perform, saying: “Ap- the plaintiff intended to do with repellants, by their conduct in dealing spect to these differences before prewith respondents and accepting pay

paring the deed. At any rate, plainments, waived the forfeiture clause,

tiff's demand was for a summary perand that by reason thereof they could

formance of the contract within a not put respondents in default with- time so short that we are unable to out having first demanded payment of

say that the chancellor was in error the money remaining unpaid, and giv

in holding it to be unreasonable." ing respondents å reasonable time

In King v. Wilson (1843) 6 Beav. thereafter in which to perform."

124, 49 Eng. Reprint, 772, it appeared

that defendant, who was a tenant, In Evans V. Ozark Orchard Co.

agreed to purchase the premises of (1912) 103 Ark. 212, 146 S. W. 511, it

which he was the occupier, on a day appeared that the plaintiff entered in

certain. The purchase was not comto a contract for the purchase of a

pleted on that day, but both parties tract of land. The abstract of title

negotiated as to the perfecting of the was to be furnished on a day certain,

title subsequent to that date. Finalbut, it having been found that the land

ly, about a month later, the defendant described in the contract was not the

gave the plaintiff a notice that if he tract selected, negotiations were en

did not perfect the title in a week's tered into for the correction of the

time defendant would consider himmistake. Subsequently, but before

self not bound by the contract. Subthe correction, the plaintiff demanded

sequently, however, he entertained the abstract within seven days. The

some of plaintiff's propositions. The court impliedly held that a notice al

court held that while time was not lowing a reasonable time in which to furnish the abstract was necessary,

originally of the essence of the conespecially in view of the fact that ne

tract, a notice by either of the parties gotiations had been in progress for

allowing a reasonable time to the several months after the time set for other to perform made it so, but that the delivery of the abstract. In that the defendant waived the time thus case it was said, referring to those fixed by his subsequent acts, saying: negotiations: "This amounted to a “The first question in this case is waiver of the time; and the question whether the contract has been put an then was whether the abstract was 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 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. land was to be purchased in meantime. 616. In that case it appeared that the Purchasers had demanded performdefendants agreed to convey a certain ance, and two months later again detract of land to the plaintiff on the manded performance, and twelve days payment of the purchase price, which later refused tender of deed); was to be made in instalments, and -Twenty-two days: Benson v. Til. that on the payment of a certain ton (1863) 24 How. Pr. (N. Y.) 494, amount of the purchase price the affirmed in (1869) 41 N. Y. 619 (nothplaintiff could demand a deed, and ing was done except that after default was to give to the defendants a mort- vendor retook possession. Both pargage for the balance. A certain ties treated contract as still in force amount of the purchase price was to subsequent thereto, until twenty-two be paid on a day certain, but on that days after date set, when vendee deday only a portion thereof was paid. manded conveyance); An extension was given for the pay- -Forty-two days: Harding v. Olment of the balance. It was provided son (1898) 177 Ill. 298, 52 N. E. 482 that if any of the payments were not (purchaser was to be entitled to conmade on the days fixed in the agree- veyance of tract of land on payment ment, that which had been paid was of balance of purchase price. Purforfeited. It was contended, among chaser tendered performance, but venother things, by plaintiff, in an action dor was not ready. Subsequently anfor specific performance, that a notice other tender was made, and five days of the defendants' election of forfei- allowed vendor in which to perform. ture was necessary, and that a reason- Purchaser actually waited forty-two able time must be allowed the plain- days); tiff to fulfil his part of the contract. -Two years: See CARROLL V. MUNThe court held, however, that where DY (reported herewith) ante, 811. a party to a contract does not make In each of the following cases the payments according to the terms of period stated was held to be an unreathe contract, and by the terms of the sonable delay in the performance of a contract the other party is entitled to contract for the sale or exchange of a forfeiture for nonpayment on the land, the time fixed by the contract days fixed, the defaulting party is not having been waived: entitled to a notice of the election of -"Ten days or so:" Lawson v. the other party, and to a reasonable Hunt (1914) 26 Ont. Week. Rep. 58, 6 time in which to perform on his part. Ont. Week. N. 89 (vendor was not IV. What constitutes reasonable time.

ready on date set for completion. In each of the following cases, the

Time was made of essence. In reply

to letter of purchaser subsequent to period stated was held to be a reasonable time for the performance of a

day fixed, vendor notified purchaser contract for the sale or exchange of

that he would be ready in "ten days lands, the time fixed by the contract

or so");

-One month: having been waived:

Plummer V. Ken-Six days: Mitchell Wilson

nington (1910) 149 Iowa, 419, 128 N. (1912) 2 D.L.R. (Can.) 714, 20 West. W. 552 (title was to have been closed L. R. 671 (purchaser paid part of the on day certain. At time, good title consideration for tract of land, and was not shown. Abstracter thereupon agreed to pay balance out of loan proceeded to correct and recopy abhe agreed to get. Vendor, after wait- stract. While so occupied, and one ing six days without anything being month later, action was instituted for done, retook possession);

recovery of value given in exchange -Twelve days: Smedberg v. More for land); (1841) 26 Wend. (N. Y.) 238, affirm- -One and one-half months: GARRIing 8 Paige, 600 (no time was fixed for SON V. NEWTON (reported herewith) performance of contract. Balance of ante, 804 (two and one-half months first instalment was to become due on after date set were consumed in cleardelivery of deed. Judgment against ing title. Purchaser allowed vendor


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